P L D 1957 Dacca 437 (PLP)

RAHMAN, J.‑

These two applications under Article 170 of the Constitution of the Islamic Republic of Pakistan have been dealt with together and will be disposed of by this judgment, as both of them arise out of almost identical facts and in both of them the questions of law to be considered are common. Writ Petition No. 118 of 1956, is on behalf of one M. A. Khaleque, who claims that he was appointed as a carpenter in the old Bengal and Assam Railway in the year 1946, that he opted for Pakistan after Partition and was posted as a carpenter at the Railway Workshop established at Chittagong under the Eastern Bengal Railway in the scale of pay Rs. 60‑2‑80 and was, with effect from 1st January 1954, drawing a salary of Rs. 70 per month as a permanent incumbent in the said post; but on the 30th November 1954, he suddenly received an order, being No. 146E/2/28 (M), dated the 29th November 1954, signed by the Chief . Mechanical Engineer, East Bengal Railway, Pahartali, terminating his services, without assigning any reason, with effect from the forenoon of 30th November 1954, with a month's pay in lieu of notice in terms of Rule 143 (3) and (4) of Pakistan Railway Establishment Code, Volume I. The petitioner Khaleque further states that he preferred an appeal to the General Manager of the said Railway against the said order on the 7th December 1954, but to no effect. further representation made on the 28th February 1956, to the said General Manager by him is also alleged not to has been responded to by the General Manager. The petitioner in Writ Petition No. 119 of 1956 is on Muhammad Shamsul Hossain who also claimed to have bee appointed as a carpenter in the year 1946 under the old Benga and Assam Railway and after Partition to have been employed at the Railway Workshop established at Chittagong under the Eastern Bengal Railway in a permanent capacity earning a salary of Rs. 70 per mensem in the scale of Rs. 60-2-80. He further alleges that on 9th June 1954 he was arrested while he was on duty, under the East Bengal Public Safety Act and whilst he was in detention under the said Act, he was placed under suspension by the Railway authorities. He states that the ground given by the Government of East Bengal for his detention under the said Act, namely, that he with the help of some anti‑Pakistan elements created unrest among the employees of Pahartali Railway Workshop was absolutely groundless and false. He further states that he was released from detention on the 2nd September 1954, and after his release he wanted permission to resume his duties but on the 30th November 1954, he also received an order being No. 146E/2/28 (M), dated 29th November 1954, signed by the Chief Mechanical Engineer, East Bengal Railway, terminating his services, without assigning any reason, with effect from the forenoon of the 30th November 1954, with a month's pay in lieu of notice in terms of Rule 148 (3) and (4) of the said Pakistan Railway Establish ment Code, Volume I. He also alleges that he filed an appeal against the said order on the 7th December 1954, and made a further representation to the General Manager on the 29th February 1956, but neither the appeal nor the representation was replied to. In these circumstances, both the petitioners contended that the orders for the termination of their respective services were penal measures and amounted to dismissal or removal from service within the meaning of sections 240 and 241 of the Government of India Act, 1935, as adapted in Pakistan; and, as such, the action of the authorities in terminating their services without giving them any reasonable opportunity of showing cause was arbitrary and contrary to law. They further contended that the provisions of the aforesaid rule 148 were ultra vires the provisions of the said sections 240 and 241 of the Government of India Act, 1935, and prayed for a Rule upon the Government of Pakistan, the General Manager, East Bengal Railway, and the Chief Mechanical Engineer of said Railway for a writ of mandamus, or a writ of like nature directing them to cancel or to recall or set aside the said orders and to re‑instate the petitioners to their respective posts. On their prayers, Rules were issued in both these matters on the 1st June 1956, in these terms: "Let a Rule issue calling upon the opposite parties to show cause why a writ of mandamus or in the nature of mandamus or order should not issue directing them to cancel or to recall or set aside the order contained in Memo No. 146E/2/28 (M), dated the 29th of November 1954, and to re‑instate the petitioner to his post, or such other or further order or orders passed as to this Court may seem fit and proper. In answer to these Rules, the respondents have filed affidavits in opposition armed by the Chief Mechanical Engineer of the said Railway wherein it has been stated that the petitioners held non‑pension-able and non‑gazetted posts in the said Railway, that the petitioner M. A. Khaleque had beet) warned and cautioned on several occasions for neglect of duty, absence from duty without authority and loss of tools, that the said petitioner was also in close associate of leading agitators who took active part in the illegal strikes on the 14th April 1954, and on the 4th, 5th and 6th May 1954, at the Carriage and Wagon Workshop at Pahartali and that such activities of the said petitioner led the Railway authorities to believe that he was an active worker of the Communist Party. The case of the petitioner was, therefore, placed before a Board of the Railway Establishment consisting of the Chief Medical Officer, the Chief Mechanical Engineer and the Deputy General Manager of the East Bengal Railway for consideration of the action, if any, to be taken against the petitioner and, after due consideration of the facts and circumstances, the Board by its finding dated the 19th August 1954, decided to terminate his service without assigning any reason and in pursuance of that decision the order dated the 29th November 1954, was served upon him. Similarly with respect to the petitioner Shamsul Hassain it is stated in the affidavit of the Chief Mechanical Engineer that he was an agitator amongst the Pahartali Carriage and Wagon Workshop staff and took a leading part in the strike of the 14th April 1954, and was one of those who were responsible for the strike on the 4th, 5th and 6th May 1954. He was also arrested under section 41(1) of the East Bengal Public Safety Ordinance and his case was also placed before the Board of the Railway Establishment consisting of the Chief Medical Officer, the Chief Mechanical Engineer and the Deputy General Manager of the East Bengal Railway for consideration of the action. If any, to be taken against him and, after due consideration of the facts and circumstances, the Board, by its finding dated the 19th August 1954, decided to terminate the service of the petitioner without assigning any reason and in pursuance of their decision, the order of the 29th November 1954, was served upon him. In both the affidavits, the respondents contend that the termination of service was not a punishment according to the Discipline and Appeal Rules for the non‑gazetted staff under the Pakistan Railway Establishment Code, Volume I inasmuch as a termination of service without assigning any reason did not disqualify the person whose service had been so terminated from re‑employment in the said Railway. They disputed that the provisions of Rules 148 were in any way ultra vires the provisions of the Government of India Act, 1935, or they had in any way acted arbitrarily in the matter. They further stated that since under the rules no appeal lay against an order merely terminating a service, no action was taken either on the appeals preferred by the petitioners or on the representation subsequently made by them. Apart from these, certain other objections have also been taken to the maintainability of the petitioners applications. It is stated that both these petitioners caused notice to be served on the Railway authorities under section 80 of the Code of Civil Procedure on the 22nd February 1955, intimating their intention of filing suits against the Railway authorities. In the circumstances, the authorities claim that the suit is an adequate alternative remedy in this case and the petitioners are not entitled to a mandamus in these circum stances. They also maintain that there has been inordinate delay in the making of these applications for which no sufficient explanation has been given by the petitioners. It is also contended in the said affidavits that the termination of service having been made as long ago as 30th November 1954, and having been given effect to long before the coming into operation of the Constitution. Article 170 of the Constitution could not be invoked retrospectively and that in any event this Court had no jurisdiction to issue a writ on the Government of Pakistan which was beyond the territorial jurisdiction of this Court. The petitioners have not filed any affidavit in reply controverting any of the facts alleged in the affidavits in opposition and the facts, therefore, alleged in the affidavits in opposition must be deemed to have been admitted for the purpose of these applications. Mr. S. R. Pal appearing on behalf of the respondents has, before us, taken only two preliminary objections to the maintainability of these applications. The first objection is that since the order of termination was made on the 30th November 1954, and was given effect to before the Constitu tion came into force, Article 170 of the Constitution cannot be invoked retrospectively so as to affect transactions which had been completed long before the said date. In any event, Mr. Pal next contends there has been such inordinate delay in the making of the present applications that this Court should not grant to the petitioners the discretionary relief by way of a mandamus in the fact of such gross laches on the part of the petitioners. In support of his contention that Article 170 of the Constitution is not retrospective, Mr. Pal has relied on two decisions of this Court, namely, in the case of S. M. Wali Ahmed Choudhury and another v. Mahfuzal Haq Chaudhury and others (P L D 1957 Dacca 209) and the Special Bench decision in the case of Jibendra Kishore Acharyya Choudhury v. The Province of East Pakistan (P L D 1957 Dacca 1). Mr. Khondkar appearing on behalf ‑ of the petitioners, however, contends that neither of the above two decisions is an authority for the proposition that where a present right exists, the remedy given by the Constitution cannot be enforced merely because the right originated prior to the Constitution, His contention is that if he succeeds in his argument that the orders terminating the service of the petitioners were wholly void from the beginning and of no effect whatsover, then the right of the petitioners to remain in the employment of the railway authorities continued unaffected and,‑ being a subsisting personal right, its violation was a continuing wrong which could still be redressed under Article 170 of the Constitution. He points out that in the facts of the Present case his right is still subsisting, because he can still file a suit for a declaration that he continues to be in the employment of the Railway authorities. The limitation for such a suit being 6 years, it cannot be said that his right has become barred as yet. Mr. Khondkar has in support of this contention relied on a decision of the Lahore High Court in the case of Salamat Ali Jafri v. The Province of West Pakistan and others (P L D 1956 Lah. 548). In this latter case, Kayani and Shariff, JJ., of the Lahore High Court held that section 223‑A of the Government of India Act, 1935, and Article 170 of the Constitution of the Islamic Republic of Pakistan were merely procedural provisions, and, therefore, could be given effect to retrospectively except where it was sought by this procedure to enforce a new right, such as the fundamental rights created by the Constitution itself for the first time. In support of the proposition that Article 170 is purely procedural, Kayani, J., has referred to various decisions of the Indian High Courts. On an examination of these decisions, however, we find that except in the case of Hindustan Alotors. Ltd. v. Union of India and another (A I R 1954 Cal. 151), and Hiranmoy Bhattacharjee and another v. State of Assam (A I R 1954 Assam 224), the other decisions have not proceeded on the basis that Article 226 of the Indian Constitution is purely procedural. In those eases what has' been held is that the right being a subsisting right on the date when the applications under Article 226 were made, the said Article could be invoked for redressing a continuing infringement of such a right. Thus in the case of Lakshmi Devi Sugar Mills, Ltd. v. U. P. Government and others (A I R 1954 All. 705), referred to by Kayani, J., it appears that although the executive order directing the petitioner in that case to comply with certain directives of the U. P. Government was issued on the 3rd of December 1949, the compliance with the said directives was required within six months. So, on the date when the Constitution of India came into operation, the order had still not expired and compliance of it was being still insisted upon even after the commencement of the Constitution. Again in the case of Hiralal Chunilal Siriah v. The State of Madhya Pradesh and others (A I R 1954 Nag. 258), the Nagpur High Court proceeded on the view that as the impugned order in that case was ab initio null, void and contrary to law it interfered with a right in praesenti of the applicant and that such impugned order being in the eye of the law a mere piece of waste paper there can be no objection to the exercise of the powers under the said Article 226 for redressing an interference with that right. Even in the Calcutta case reported in A I R 1954 Cal. 151, it is significant that although the learned Chief Justice in his judgment observed that Article 226 created no substantive right but only provided a new form of remedy through the High Courts which might well have been done by an Act of the appropriate Legislature or Legislatures, yet he preferred to base his decision on the larger ground that since the claim of the Customs authorities, which was being challenged in that case, was being asserted even after the Constitution and was not claimed under a right created for the first time by the Constitution, it amounted, therefore, to a violation of a right in present and could be redressed by invoking Article 226 of the Indian Constitution. In the Assam case this obiter dictum of the learned Chief Justice of the Calcutta High Court was followed by two of the learned Judges but the third learned Judge dissented. There is, however, at least one Full Bench decision of one of the Indian High Courts in the case of Rajaram Dadu and others v. The State and another (A I R 1951 Nag. 443), where Hidayatullah, Mangalmurti and Mudholkar, JJ., held that Articles 226 and 227 of the Indian Constitution did not relate to matters of procedure but conferred a power upon High Courts to inter fere in certain cases and, as such, this power could not be invoked by a person aggrieved by a decision of a Court or a tribunal or an authority arrived at before those provisions came into force. Upon a consideration of these decisions, we are inclined to agree with Mr. Khondkar that where a right, although it arose prior to the Constitution, is still subsisting after the Constitution, then an infringement thereof can be redressed by invoking the provisions of Article 170 of our Constitution. In the present case, Mr. Khondkar, of course, contends that if the orders of termination of service are void ab initio, they are mere waste papers in the eye of the law and the right of the petitioners to employment by the Railway authorities is still subsisting and can be enforced. The decisions of this Court referred to by Mr. S. R. Pal are distinguishable in so far as the decision in the case of Jibendra Kishore Acharyya Chowdhury v. The Province of East Pakistan, concerned the infringement of a fundamental right which was created for the first tine by the Constitution itself and in the case of S. M. Wali Ahmed Chowdhury and another v. Mahfuzal Haq Chowdhury, the question was whether a pending application under section 233‑A of the Government of India Act, 1935, should be treated as one under Article 170 of the Constitution or not. If, therefore, in a fit case it is established to our satisfaction that a right in praesenti is being infringed, no matter when that right was created, we would no doubt have jurisdiction to redress in proper cases the infringement of such rights, under Article 170 of the Constitution. We are not, however with great respect to the learned Judges of the Lahore High Court, prepared to go so far as to say that Article 170 is merely procedural. Having held this, we now proceed to deal with the second contention raised on behalf of the respondents as to the inordinate delay in the making of these applications. It is significant that on the date the orders of termination of service were made and communicated to the petitioners, the Govern ment of India (Amendment) Act, 1954, incorporating section 223‑A was in force and could have been invoked uptil the 21st March 1955, when it was declared invalid by the Federal Court and again, the said section 223‑A having been re-introduced by the Validation Act of 1955, as and from the: 2nd October 1955. The petitioners did not, however, choose to make any application under the said provisions which would have given them equally efficacious, inexpensive and expeditious remedies; but instead elected to cause notices under section 80 of the Code of Civil Procedure to be served even as late as the 22nd February 1955. Mr. Khondkar says that his clients have furnished sufficient explanation for the delay and that such explanation should be accepted as valid. The only explanation given for this inordinate delay by the petitioners is that they had been trying to have the order set aside or vacated and that, on account of financial difficulties, they could not make the applications earlier. We are not impressed by these explanations. From the allegation in the petitions, it appears that their appeals preferred as long ago as the 7th December 1954, were not even replied to by the General Manager and, at any rate, there can be no doubt that when they served notices under section 80 of the Code of Civil Procedure on the 22nd February 1955, there was no longer any question of their still trying to have the order vacated. They well knew that the authorities were not prepared to listen to their representations and hence they made up their minds to file suits against the authorities. As for their financial difficulties, all we need say is that if they had the means to cause notices to be served through pleaders giving notice of their intention to file suits, as would appear from the copies of the notices annexd to the affidavits in opposition, they certainly had the means also to file applications in this Court under section 223‑A of the Government of India Act, 1935. This ground is of course by itself sufficient to dispose of these applications but, in the present case, we feel that there is yet another more substantial ground on which these appli cations must fail although this ground was not argued at the Bar. Even if the contentions of the petitioners are accepted and it is assumed for the present purposes that the orders terminating the respective services of the petitioners were in violation of the provisions of sections 240 and 241 of the Government of India Act, the relief by way of a mandamus for re‑instatement to office cannot be granted. It is well‑settled that although a mandamus may lie to compel restora tion of a person to an office or franchise of which he has been wrongly dispossessed, such an order will not issue except in the case of an office or frauchise, which is of a public nature. It will certainly not issue in the case of an office which is held at the pleasure of someone else. Thus, as stated in Halsbury's Laws of England, second edition, Volume 9, page 747: "when, however, the office in question is neither a corporate office nor a permanent one, but one which merely depends upon the will of a fluctuating body, no mandamus will lie to restore or admit thereto." Mayor and Justices of Bodmin (1), where it was held that since the office of a clerk to the Justices was one which was dismissible at the pleasure of the Justices, a mandamus would not issue, for, even supposing a mandamus did issue for appointing such a clerk, there was nothing to prevent the Justices from dismissing the person so appointed the next day and thus rendering the mandamus futile. In the present case also, it must not be forgotten that under the very words of section 240, subsection (1) of the Government of India Act, every person who is a member of Civil Service of the Crown in Pakistan or holds any. Civil Service under the Crown in Pakistan holds office during His Majesty's pleasure. The only restriction that the Government of India Act, 1935, imposes on this pleasure is that a particular procedure must be followed for dismissal. Thus even if the petitioners were to succeed in these applications, the only order that we could make would be to direct the authorities to act according to law, namely, to deal with the case of the petitioners in accordance with the provisions of sections 240 and 241 of the Government of India Act but we could by no means command the authorities to re‑instate the petitioners because then we would be commanding them to do something which they are not obliged by law to do. Another very good reason, why this cannot be done is because by ordering re‑instatement to office, as desired by the Rule issued in the present case, we would in effect be granting specific performance of a contract of personal service, which could never have been made either at law or equity, anti lastly because, as we have already pointed out, a mandamus will not and should not issue where the chances are of the order of the Court being flouted and rendered infructuous. Even if we were to order re‑instatement of the petitioners, there is, as pointed out in the decision in (2) nothing to prevent the Railway authorities from serving a charge‑sheet upon the peti tioners the very next day and dismissing them after giving them an opportunity of showing cause. By a mandamus, we cannot presume to tell the authorities what to decide or to substitute our decision for the decision of the authorities. It must be remembered that we can only ask them to perform the duty which is incumbent by law upon them to perform and nothing more. The powers given to this Court by Article 170 of the Constitution are indeed very wide and extraordinary power It behoves us, therefore, to be very circumspect in the exercise of these extraordinary powers vasted in us. We must not forget that these powers are not intended to be mere substitutes for the ordinary remedies available at law to a litigant, and that, as such, these powers should be exercised only in cases where exceptional circumstance exist calling for the exercise of these extraordinary powers. The writ of mandamus, as stated in Halsbury's Laws of England, second edition, page 744, is in nature of "a command issuing from the High Court of Justice, directed to any person, corporation, or inferior Court, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to supply defects of justice, and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing such right." The narrow limits of the scope of the order that can be made in these matters have been specified in Halsbury's Laws of England, at page 751:‑ "A writ of mandamus will be granted ordering that to be done which a statute requires to be done, and for this rule to apply it is not necessary that the party or corporation on whom the statutory duty is imposed should be a public official or an official body. In order, however, for a writ of mandamus to issue for the enforcement of a statutory right, it must appear that the statute in question imposes a duty, the performance or non‑performance of which is not a matter of discretion, and if a power or discretion only, as distinct from duty, exists, a writ of mandamus will not be issued by the Court." Again at page 790: -- "The writ must command no more than the party against whom the application is made is legally bound to perform, and a writ commanding that to be done which by law there is no power to do, or founded on an obligation which cannot clearly be shown to exist, cannot be sustained." It will be clear from the above that in view of the provisions of sections 240 and 241 of the Government of India Act we cannot command the Railway authorities to re‑instate the petitioners, for they are under no clear obligation to continue to employ them. It is however, contended that since our powers under Article 170 are not restricted merely to issuing writs but also extend to issuing directions or orders, therefore, we could even make a declaration that the petitioners were still em ployed or that the order terminating their service was null and void. The Rule, however in the present case, is for a mandamus and for an order in the nature of a mandamus and a mandamus has never issued merely for declaring that an act of a person is unlawful or for declaring the title of a person to an office. The respondents are here to answer the Rule issued against them and not any other case. In this view of the matter, it is not necessary for us to enter into the question as to whether the directions or orders mentioned in Article 170 of the Constitution extend to the making of mere declaratory orders or decrees and we should not be taken to save derided this question. For these reasons we are of opinion that both these Rules must be discharged. Since we have come to the conclusion that even if there is a violation of the provisions of sections 240 and 241 of the Government of India Act, the remedy does not lie by way of a writ of mandamus, we advisedly do not enter into the questions as to whether there has or has not been in the present cases any violation of the provisions of sections 240 and 241 of the Government of India Act, 1935, or whether Rule 148 of the Railway Establishment Code, Volume 1, is ultra vires the provisions of the Govern ment of India Act, last we might say something which may prejudice either of the parties in the event of the threatened suit being filed. The result, therefore, is that these Rules are discharged with costs. Mr. Khondkar, appearing on behalf of the petitioners, prays for the grant of a certificate under sub‑Article (1) of Article 157 of the Constitution. The prayer is refused as, in our opinion, no substantial question of law as to the interpre tation of the Constitution arises in this case. ISPAHANI, J.‑

I agree. A. H. Rule discharged.