P L D 1962 Supreme Court 142 (PLP)

CORNELIUS, C. J.

This app-,al has been heard with the assistance of three Judges of the two High Courts of Pakistan, constituting with four Judge) of the Supreme Court, a Special Bench convened for the consideration of a difficult question of far-reaching importance affecting the relations of Government with public servants in the Railway administration. It is appropriate that I should here record my sense of obligation to the learned Judges of the High Courts who have assisted at the hearing. We have heard a number of carefully prepared arguments by senior Government counsel including the Attorney-General and the two Advocates-General, and an Additional Advocate-General appearing on behalf of the Pakistan Western Railway, as well as an elaborate argument presented on behalf of the appellant, Khawaja Ghulam Sarwar, an ex-Foreman in the Moghalpura Workshops of the Pakistan Western Railway by Pirzada Sharifud din. The Court is particularly indebted to Pirzada Sharifuddin for having undertaken at very short notice, and we believe without remuneration, to plead this difficult case on behalf, - of the appellant. It is of interest to examine the facts which led to the suit by Khawaja Ghulam Sarwar to challenge the order by which his service of some 25 years duration with the North-Western Railway (now styled the "Pakistan Western Railway") in the capacity of a permanent official in the Class III service, was brought to an end by a notice purporting to be issued under a clause in his Service Agreement. This was entered into on the 8th November 1.933, and by clause (3), it was expressly provided that the service was "permanent and non-pensionable and terminable at any time, (a) by the Railway Administration on one month's notice, or on payment of a month's pay in lieu of notice, (b) by the Railway servants on one month's notice only . . . ." In the same clause mention was made of another mode in which his service could be terminated in the following words, viz :-- "The authority, which appoints him, has full power and authority, at any time, for any reason, that may to him appear sufficient, to suspend or dismiss the Railway servant, or other wise punish him according to the rules of the service in which he Is for the time being employed". The order by which the service was terminated was issued on the 24th August 1953, in pursuance of sanction received from the General Manager of the Railway by letter of the same date of which a copy has been placed on the record. The, intimation to Khawaja Ghulam Sarwar said that his services were no longer required by the Administration, and that they were being terminated with effect from the same day with one month's pay in lieu of notice, in terms of paragraph 3 of his Service Agreement, and it was added that "no appeal lies against these orders". The letter from the General Manager makes it clear that there had been a Screening Committee which bad recorded a finding regarding the further retention of Khawaja Ghulam Sarwar in service, and that it was in accordance with this finding that the notice was eventually issued. The plaintiff Khawaja Ghulam Sarwar produced witnesses who stated that such an enquiry had been held and they had been called to give evidence against the plaintiff which they had refused to do and in consequence, they themselves were subjected to some kind of punishment. But Khawaja Ghulam Sarwar himself was not informed regarding this enquiry, and took no part in It. He pleaded in his plaint that the true reason for his removal was that a Mr. Altaf Hussain, Divisional Personnel Officer, and a Mr. Osborne, the then Works Manager of Moghalpura Workshops who was his direct superior, bore ill-will towards him. As regards Mr. Osborne, the allegation was that there was an incident con cerning certain defective rubber buffer-washers, which had been supplied by a firm in Karachi and in consequence relations between Mr. Osborne and Khawaja Ghulam Sarwar became very strained. The details of this incident appear, although only from the plaintiff's point of view in his petition to the Governor General. He was prevented by Court order from giving evidence in regard to them, under a claim of privilege. It seems that Khawaja Ghulam Sarwar overheard a conversation on the telephone by Mr. Osborne with reference to these washers and thereafter gave orders for them to be used as quickly as possible, and the suggestion is that this was done so that they might escape examination. The petitioner stated that he conveyed the substance of this conversation to another officer and later Mr. Osborne came to know of this and used threatening language towards him. As to Mr. Altaf Hussain the allegation was much more serious. It was that Khawaja Ghulam Sarwar had been lending money to the wife of Mr. Altaf Hussain, and when he bad in December 1952 sent a message through another Railway employee who was living in an out-house of the residence of Mr. Altaf Hussain asking for re payment, the lady was annoyed, and the matter being reported to Mr. Altaf Hussain, the plaintiff was sent for and reprimanded, and told that the money had in fact been taken by Abdul Ghani, peon to Mr. Altaf Hussain, and that Mr. Altaf Hussain would see that the peon paid it back. This matter became known to others as well and Mr. Altaf Hussain took certain steps by which the peon Abdul Ghani was obliged to repay Rs. 100 in cash, and to ,hand over a gold ornament of the value of Rs. 400 or Rs. 500, against debts totaling Rs. 700 which the plaintiff said that he had given to the lady. There is on the record a report made by Mr. Altaf Hussain to his own superior officer, the Superinten dent of the Moghalpura Workshops giving a very full account of the matter, from which it transpires that after a certain period bad elapsed during which enquiries were made and money was repaid, the peon Abdul Ghani came out with the story that he had received Rs. 500 from Khawaja Ghulam Sarwar as a bribe "to speak favourably about him and recommend his case" to Mr. Altaf Hussain, in order to gain promotion. The subsequent steps that were taken appear from a notice sent to Khawaja Ghulam Sarwar on the 3rd February 1953, mentioning explicitly that he had advanced during the previous year" various loans in cash and kind to peon Abdul Ghani since discharged on no better authority than the said peon's verbal statements that they had been asked for by the families of D. P. O. 'W' and Dy. G. M. 'P', and thereby he bad aided and abetted corruption, since the demands had come from families of officers who could not place themselves under pecuniary obligation to a subordinate like him. The notice asked him to show-cause why the penalty of withholding his next increment for a period of 12 months or any lesser penalty should not be imposed upon him. To this he replied by letter dated the 7th February 1953, saying that the "transactions were carried out in good faith according to Islamic Law as Qarzi-i Hasna and not with the intention to aid or abet corruption", and that he would never repeat this conduct again. On the 10th February 1953, an order was made by the Superintendent of the Workshops withholding his next increment temporarily for a period of 12 months. In his petition to the Governor-General, Khawaja Ghulam Sarwar said expressly that the reply of the 7th February 1953 which he gave to the notice was drafted by Mr. Osborne himself. It is, I think, fair to say that the method adopted of imposing a comparatively minor penalty which the delinquent practically agreed to accept, for an affair which if it had been made the subject of a proper enquiry might have led to some ugly exposures, exhibits a degree of finesses in the handling of the matter. After this incident, on the 6th July 1953, Khawaja Ghulam Sarwar was served with a notice saying that when Mr. Osborne made a surprise check of his shop at 1.15 p.m. on the 18th June 1953, about 500 men presented themselves and claimed their respective tickets within an hour whereas Khawaja Ghulam Sarwar only presented himself at 2.30 p. m. which "proves beyond doubt that you were not at the site of your work but were wasting your time" and he was asked to show-cause why the penalty of removal from service or any lesser penalty should not be imposed upon him. This notice, it appears, was abortive, for in his petition to the Governor-General, the plaintiff mentioned this surprise visit and at the same time said that Mr. Osborne "could not get anything against the petitioner." The matter does not appear to have been taken any further. It was thereafter that in August 1953, the final action was taken which led to the termination of his service by notice, and the assertion of the plaintiff that the Screening Committee was composed of the Superintendent, Mechanical Workshops, assisted by Mr. Altaf Hussain and Mr. Osborne is supported by the evidence of two witnesses, namely, Taj Din (P. W. 5) and Jaffar Hussain (P. W. 6). The plaintiff attempted to secure production of the proceedings of the Screening Committee before the Court, but these were withheld on the ground of privilege. If they had been produced, it may well have been possible to ascertain whether the action taken against the plaintiff was not by way of delayed punishment for his offence at the beginning of the year, in bringing to light the respective affairs concerning Mr. Osborne and Mr. Altaf Hussain. This fact and the other tact that no new fault was established against Khawaja Ghulam Sarwar after the order of the 10th February 1953, provide material upon which it is possible to draw the inference that the termination of his service by notice bore a direct connection with his exposure of certain unseemly transactions in which Mr. Osborne and Mr. Altaf Hussain respectively were involved. The conclusion is relevant to the question of the legal nature of the facility which was employed for getting rid of Khawaja Ghulam Sarwar. As an employee of the Government, both as a member of a service and as a holder of a civil post, Khawaja Ghulam Sarwar was prima facie entitled to the rights expressed in favour of Government servants in section 240 of the Government of India Act, 1935, which was the constitutional instrument in force at the relevant time. This section received interpretation in the well-known case of I. M. Lall (P L D 1948 P C 150) which went before the Privy Council, and a conclusion there reached which is relevant to the present case is this that while the right of a civil servant governed by the Civil Services (Classification, Control and Appeal) Rules to a reasonable opportunity to defend himself against a charge involving any punishment, continued to be that provided by Rule 55 of those Rules, a further right was given by subsection (3) of section 240, namely, that after the completion of the enquiry, if the authority concerned was of the opinion that the person at fault should be dismissed or reduced in rank by way of punishment the delinquent had to be given "a reasonable opportunity of showing-cause against the action proposed to be taken in regard to him". By expression, the C. S. (C. C. A.) Rules do not apply to Railway servants, but there is a set of disciplinary rules applicable to Railway servants which also contain elaborate provision for, the holding of enquiries. Reference may be made here to para graph 1707 in the Pakistan Railway Establishment Code, which lays down the procedure for enquiry, into an offence by a nongazetted Railway servant the maximum penalty for which is dis missal. There is to be a charge-sheet in detail, and an oppor tunity is to be given for submitting a written explanation, and orders may be passed upon this after the officer conducting the enquiry has considered it unless the competent officer thinks a departmental enquiry is necessary in which case there shall be a hearing and recording of evidence in support of the charge as well as for the defence. These provisions do not differ materially from those in Rule 55 of the C. S. (C. C. A.) Rules applicable to civil services in general. The Railway Rules for non-gazetted servants do not include a provision to require the issue of a second notice where dismissal or reduction in rank is proposed as was found by the Privy Council in I. M. Lall's case to be necessary under sec tion 240, subsection (3) of the Government of India Act, although rule 1712 lays down for certain lesser penalties the requirement that the offender should be "called upon to show-cause why that or any lesser penalty should not be imposed." The omission is of no importance, for the constitutional provision prevails against any expression and against any implication from, omission appearing in the relevant rules. The present is, however, a case where although there was an enquiry before the service was terminated, it was not an enquiry under Rule 1707, and as no notice of the enquiry was sent to the official concerned, it did not satisfy the requirement of "reasonable opportunity". Nor was there any opportunity given to show-cause against the order of termination. Both these constitutional requirements were avoided, by adoption of the mode of termi nation by notice, on the basis of the clause in the service agree ment, and the contention that the action was in violation of the Constitution of 1935 is met by the reply that such termination does not fall within the meaning of the expressions "dismissal" and "removal" as employed in that Constitution. The record does not show whether there are any rules govern ing the appointment of Screening Committees by the Railway or the circumstances in which the particular Screening Committee in this case was appointed, or the terms of reference. The impression given is that the procedure is one enabling the authority concerned to inform himself whether the case is an appropriate one for being dealt with under the power which the notice clause in the service agreement purports to provide, for the Railway Rules do not leave the power unfettered by guidance, or in a word, naked. The guidance is contained in a proviso to Rule 1708, dealing with the circumstances in which an order of removal from service may be made. The rule reads as follows :- "Removal from service.-A railway servant shall be liable to be removed from the service in the following circumstances, viz :- (i) inefficiency ; (ii') committing any offence for which he may be dismissed under Rule 1706 ; (iii) repeated minor offences ; (iv) absenting himself or overstaying sanctioned leave, without sufficient cause ; (v) incivility to the public Provided that nothing in these rules shall abrogate the right of a General Manager, in exceptional circumstances, to remove a non-pensionable non-gazetted railway servant from service in terms of his agreement without application of the procedure described in the rules in this section and without assigning any reasons, if he considers it desirable to do so. The General-Manager may delegate his power only to :- (i) a Head of a Department, or (ii) a Deputy Head of a Department, or (iii) a Divisional Superintendent." It will be noticed that this proviso does not assert a plenary right in the General Manager to exercise the power of removal by notice. The "right" of the General Manager is subjected to limitations. He is to exercise the right only "in exceptions; circumstances". The proviso recognises that this "right" carries with it the advantage that it avoids application "of the procedure prescribed in the rules in this section". It adds that in a case where the General Manager considers it "desirable" to do so, he may exercise his right of removal "without assigning any reasons." A number of implications may be spelled out of the un deniably astute wording of this proviso. When it provides that its machinery shall only be applied in "exceptional circumstances", it necessarily implies that ordinarily the mode of removal under Rule 1707 shall be employed, i.e., after due enquiry and, of course. the second notice required by section 240 (3), Government of India Act, 1935. It implies also that the power is not equivalent to the unfettered power of termination by notice, which is available under the law of master-and-servant, or under the law of contract. The assignment of reasons or cause for termination is not a requirement under the two systems of law last-mentioned. But the Railway Rule implies that reasons shall be given, unless the General Manager thinks it desirable not to do so. These condi tions applied to the exercise of a power which, in the service agreements, is totally unfettered, operate in favour of the Railway servant, and militate against the acceptance of the view that his service, by virtue of the notice clause to which he agreed at the time of his employment, is governed entirely by the law of master and-servant, or alternatively, under the law of contract, by the terms of the service agreement. The case for the Railway servant is that, despite the notice clause, in the service agreement, his service was governed by the Constitutional provisions in the Government of India Act, 1935, in the relevant respects. That case is, in my opinion, supportable on at least two other considerations, arising out of provisions contained in sections 240 and 241, Government of India Act, 1935. Taking the latter section first, it provides in subsection (2) that the conditions of service of e.g., Railway servants shall be governed by rules made by the Governor-General or his duly authorised delegate, and, in particular; in subsection (3), Clause (b), that the rules so made shall provide the same rights of appeal against an order, by an authority subordinate to the Governor-General which e.g., termi nates the appointment of such a person, otherwise than upon his reaching the age fixed for superannuation, as he enjoyed imme diately before the Act came into force in India. For certain Railway servants, there were already in existence, rules providing for such appeals, not only against orders of dismissal or removal, but even against orders terminating their appointments by notice. Rule 1731 (b) provides an appeal against an order discharging a member of the Pakistan Railway Service Class I or Class II, who has been engaged on contract for an indefinite period and who has rendered continuous service for more than five years. No such facility is provided by the Rules to employees in the lower grades, such as the present plaintiff, but the instance serves to indicate that even where the person is a mere contract employee, he earns a right to protection, under the Rules, which is entirely distinct from, and wholly outside the purview, of any rights pertaining to him under the contract. A fortiori, a mere notice clause in a service agreement, executed by a member of an integrated service, holding, a permanent place in that service, cannot be set up as something which the constitutional provisions cannot touch. This is the more so as, whatever may be the protection granted or withheld by the rules, these must give way to the constitutional provision, viz., the requirement of section 241 (3) (b) and (c), Government o: India Act, 1935, which read together clearly are susceptible of the interpretation that every person "serving His Majesty in a civil capa city" was to be provided with at least one appeal against an order a "terminating his appointment, otherwise than upon his reaching the age fixed for superannuation" and an order of discharge by notice to a permanent servant, for whom an age of superannuation has been fixed by rule, would certainly fall within this description. It is, therefore, at least doubtful whether the intimation to Khawaja Ghulam Sarwar that there was no appeal against the order dis charging him in terms of the contract, was in accordance with the constitutional provisions. It may here be mentioned that he attempted to memorialise the Governor-General, without success, for his memorial was withheld at Lahore. The other consideration arises out of the provision in section 240 (4), Government of India Act, 1935, that where, for special reasons, a person not being a member of a civil service, is engaged on contract to fill a post there may be a clause in the contract providing that compensation shall be paid to him "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". The Railway Rules do not contain any separate provision for engagement on contract in the sense of section 240 (4), although there are special rules for grant of, e.g., leave to "officers engaged on contract" vide Rule 734 and passage benefits to such officers, vide Rules 819 to

828. But in the C. S. (C. C. A.) Rules, there is specific provision in Rule 46 for an agreement of service in respect of "a particular post or any of them", and sub-rule (3) provides that such an agreement may stipulate that "the person with whom it is made shall not, save in circumstances stated in the agreement, be dismissed otherwise than on payment to him of compensation". Now, the strongest ground advanced for the proposition that discharge in terms of a contract does not amount to removal or dismissal within the meaning of the 1935 Act, is the existence in the C. S. (C. C. A.) Rules, Rule 49 of which specifies the penalties, including removal and dismissal, which may be visited upon members of the main Civil Services in India, of an Explanation, viz., (c) to the effect that "The discharge of a person engaged under contract, in accordance with the terms of his contract, does not amount to removal or dismissal within the meaning of this rule". Is it then in the strict sense that the word "dismissed" is used in rule 46 (3) of the same Rules? This provision is of prior date to the Act of 1935, and is clearly modified by section 240 (4) of that Act. But here the word `dismissed' is not used. It is replaced by the expression "required to vacate (that) post" which would include both a dismissal for misconduct, as well as a discharge by notice. Does Section 240 (4) contemplate that a dismissal for misconduct shall be accomplished In the same unilateral manner as a discharge by notice, with a mere mention of misconduct 7 A valuable right is at stake for the official concerned, viz., the right to compensa tion in respect of the un expired portion of his contract and a finding of misconduct implies a judicial act, after hearing the delinquent. It seems to me that the conclusion is inescapable that section 240 (4) contemplates conditions under which the removal, even of a contract servant, cannot be accomplished otherwise than by the procedure applicable to all public servants. For It must be remembered that section 240 is by expression given the widest application to "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", and its provisions are not to be avoided by reference to any rule, whether of earlier or of later date. Section 276 expressly gives validity to Civil Service Rules of earlier date, but only to the extent that they are consistent with the Act of 1935. Therefore, it seems to me to be difficult to maintain that the power of the Government to engage persons for the public service on contract, on special terms, varying from those applicable to members of the regular services and others, as set out in the existing rules, was exercisable so as to avoid all the provisions of the Act of 1935 as well. On the contrary, that Act by expression and implication embraces the case of such contract servants, and assures to them rights to protection in respects, directly touching their retention of office. It is relevant, therefore, to enquire whether there is any reason why the general requirements of the Act, in regard to separation from office otherwise than by superannuation, cannot be observed in the case of contract servants as well. One of these requirements is that such action shall not be taken by an authority subordinate to that by which the public servant was appointed, and the law of master-and servant as well as the law of contract is not different in this respect. Another is the recognition of a right to an enquiry, where there is a charge which furnishes the ground for separation from office, and as we have seen, section 240 (4) contemplates such a right in favour of a contract servant. The procedural provisions are contained in the rules, and these are given validity by section

276. Again, a right of appeal is granted by section 241 in terms which are wide enough to embrace the premature termination by order of a contract of employment, in all cases except where the employment is temporary, and is terminable on one month's notice or less. The emphasis in these provisions is laid upon (a) the competence of the authority making the order, (b) that the order is not made arbitrarily or capriciously, but is preceded by a judicial process where punish ment is involved, and (c) that the order is subject to review by higher authority, in other words, that it must be supported by reasons. It seems to me necessarily to follow that the claim to an absolute and unfettered power of discharge by notice, without assignment or even ascertainment of reasons is inconsistent with h these provisions, and in particular, the last-mentioned provision, whose content and purpose is carried out, in express words, in the proviso to rule 1707 which has already been examined. The plaintiff's contention is that the requirement of a notice to show cause against removal, provided by section 240(3) was applicable in the case of his discharge as well. It seems to me that where "exceptional circumstances" have to be found, and reasons for discharge have to be given, unless it be thought "desirable" not to do so, it is scarcely within the contemplation of the law that these conclusions are to be reached exclusively upon examination of the circumstances affecting the appointing (and dismissing) authority, and wholly without reference to the person most acutely to be affected, namely the employee to be discharged. Such a reference is enjoined by section 240 (3). To make it would be an act in conformity with the constitutional provision, and would not violate the contract in any way. The Railway authorities deny the existence of any duty to make such a reference, resting on the plenary powers which the wording of the notice clause appears to confer, and the contention that a discharge of a Railway servant by notice under that clause, is not within the meaning of the expressions "dismissal" or "removal" as used in the Act of 1935. It is evident from the foregoing discussion that the reliance upon the wording of the notice clause may well be illusory. That would be the case even if the appointment were one of the special contract appointments contemplated by rule 46 of the C. S. (C. C. A.) Rules. The case before us is wholly different. The plaintiff belongs to a large class of non-pensionable Railway servants, who are integrated into a Permanent Class III Service, whose personnel Is ranked in a number of different grades, according to the importance of the posts included In each grade. Each of the members of the Class III Service is a permanent Railway servant, for whom an age of superannuation is fixed. But, by Rules 143 and 148 in the Railway Establishment Code, each of these persons, while they are all entitled to the protec tion of section 2110 of the Act of 1935, must also execute an agreement which contains the notice clause aforesaid. (Rule 148 (3) is expressed so as to avoid even the giving of notice "in cases of summary dismissal or discharge under the provisions of service agreement . . . . . . . and termination of service due to mental or physical incapacity". There appear to be no agreements which provide for "summary dismissal or discharge", and it seems also to have been overlooked that "mental or physical incapacity" is a matter of fact to be ascertained by examination, and should ordinarily be the subject of an enquiry, if the removal is not to be wholly arbitrary, upon a mere ipse dixit of the dismissing authority). In one of the judgments delivered in the High Court, it is mentioned that the notice clause is a relic of the time when all or most of the Railways in the Indian sub-continent were Company-owned and Company-worked, That may well be the case, but it, in any case, is clear that the incidents of a service such as that of which the plaintiff was a member are of a nature which makes it difficult to suppose that the notice clause was, by itself, to prevail against all the protections which by the Act of 1935 were provided to members of the permanent public services. It goes without saying that in a case of conflict, the constitutional provisions must prevail against anything contained in the agreement. On the point of construction, viz.,-whether "removal" in section 240 includes termination of service by a notice of discharge, the Railway rules distinctly operate, in favour of the Railway servant. As has been observed, the Railway authorities leaned heavily for their contention on this point, upon an Explanation to Rule 49, C. S. (C. C, A.) Rules. Those rules, however, have no application to Railway servants. Whether the Explanation could prevail, in a given case affecting a civil servant subject to the C. S. (C. C. A.) Rules, against the constitutional provisions in the Act of 1935 is a question which need not be answered in this judgment, although much that is said here may have a bearing upon the examination of that question. The attempt has been to argue that section 240 was drafted with the knowledge that there was in existence Rule 49 of the C. S. (C. C. A.) Rules, and the word "removal" must, therefore, be understood as excluding discharge by notice under a contract. But, as has been mentioned, section 276 of the Act of 1935 gives validity to the rules in existence only to the extent that they are not inconsistent with the Act, and Rule 49, C. S. (C. C. A.) Rules cannot, therefore, be allowed a determinative effect. The cor responding rule for Railway servants is Rule 1702, which enumerates eleven different penalties including removal from the service and dismissal from the service, and replaces the three part Explanation appended to Rule 49 aforesaid, by four Notes, of which the first Note specifies six instances in which a discharge "does not amount to removal or dismissal within the meaning of this rule". The Explanation aforesaid also dealt exclusively with discharges not amounting to removal or dismissal, specifying three such instances. The point of significant, not to say overwhelming, difference between these two Rules, vie., Rule 1702 for Railway servants and Rule 49, C. S. (C. C. A.) Rules is that unlike the latter rule, Rule 1702 contains no provision to the effect that "the discharge of a person engaged under contract, in accordance with the terms of his contract, does not amount to removal or dismissal within the meaning of this rule". It might have been thought that since all non-pensionable Railway servants, who form a very numerous category, were required to execute service agreements, i.e., contracts of service, and these provided for termination by notice, if the intention were to treat such termination as distinct from removal, it would have been expressed in the same way as in the corresponding set for civil servants in general, vie., the C. S. (C. C. A.) Rules. In Note (1) to Rule 1702, item (a) is in precisely the same language as item (a) in the Explanation to Rule 49 aforesaid, and although there are significant differences In the remainder of the text in the two rules, it is sufficiently clear that Note (1) to Rule 1702 is modelled upon Rule 49, C. S. (C. C. A.) Rules. That Is not the only indication to be found in the Railway Rules that discharge by notice under the service agreement is not excluded from the meaning of the expression "removal". Rule 1708 which has been reproduced above, bears the short title "Removal from Service" and it is in this Rule that the proviso is inserted which asserts and defines the power of the General Manager "to remove a non-pensionable railway servant from service in terms of his agreement". It seems to me that the compelling effect of these clear provisions in the rules applicable to Railway servants, such as the plaintiff, must at least be to nullify the impression conveyed by the continued existence of the aforesaid Explanation to Rule 49, C. S. (C. C. A.) Rules, in regard to the interpretation of section 240 (3). The would used in section 240(3) is "dismissed", but section 277 provides that references to dismissal in the Act shall include references to removal. It is true that the subsection places dismissal" and "reduction in rank" together, and the impression may thereby be created that it has reference only to punishments. But the meaning is widened, and to an extent softened, by the enlarged connotation provided for the word "dismissal", and it is to be remembered also that the official concerned is to be allowed to show cause "against the action proposed to be taken in regard to him" which could include the less violent form of removal, vie, a discharge by notice. Therefore, I am led to the conclusion that the ordinary sense of separation from office must be given to the expression "removal" as contemplated by section 240(3) of the Act of 19?5, in its application to Railway servants. Such a separation even though it be effected by notice under the relevant clause, is placed by the Constitution Act of 1935 under the requirement of a reasonable opportunity to show cause against the proposed action. In the absence of such a notice, the power given by the clause cannot be said to have been validly exercised. A separation or removal, following upon a secret enquiry, in which the official to be removed was not associated, and without giving him the "reason able opportunity" aforesaid, is clearly unconstitutional and of no effect. The view which 1 have formed as a result of the foregoing examination may now be summarized. The Constitution Act of 1935 contemplated contracts of employment under Government, being entered into, expressly in special cases, but, by implication, in a general way. It did not, however, by expression or omission, invest such contracts with any degree of sanctity, via-a-via the protections which it was expressly conferring upon public servants. 'thus, I come to the conclusion that to contract employees also, all those protections must be extended which are not excluded either expressly or by necessary intendment. The employer namely the Government acting through a competent authority, cannot affect to ignore the requirements of the Constitution of 1935, and plead the letter of any clause in a contract in bar of a protection which is provided by that Constitution in the particular case. Next, by applying recognized principles of construction to the statutory Riles applicable to Railway servants, I am led to the conclusion that those rules do contemplate that the discharge by notice of a permanent servant such as the plaintiff is a form of "removal", which is to be adopted in "exceptional circumstances", when also, the authority making the order may refrain from stating his reasons, if he thinks it "desirable" to do so. One may infer, without unfairness, that the minimum requirement to justify such unusual action, is that the official in question has become persona non grata with the department generally or with his superiors. Circumstances such as that an official has become surplus to requirements, or which otherwise involve nothing in the nature of a stigma or an adverse opinion regarding him could hardly be described as "exceptional", nor could the withholding of reasons be something to be desired in such a case. The present case is, in fact, a model of the type which the General Manager's power of removal by notice is designed to deal with. It is also a very apt instance to explain the necessity of the requirement, which I hold to be of a constitutional nature, that before making an order of discharge, the official concerned should be given by the authority concerned a reasonable oppor tunity of showing cause against the order. If the General Manager had given the plaintiff such an opportunity, he may have succeeded in placing before him what he brought to light in the Civil Court, viz., that it was a case of victimization by two officers, whose anger he had incurred, through incidents which reflected a far worse light on them than upon himself. He might have brought to the notice of the General Manager that these were the very officers who sat in judgment on him in the Screening Committee and ordered that he should be quietly removed. As I have observed already, despite the shrewdness of the expressions used in the proviso to rule 1708, it can never be the intention that the General Manager should ignore altogether the interests and contentions of the official concerned in exercising the extraordinary power of separating him from his office. It is in every way conducive to justice, and an aid to the implementation of the intention of the constitutional provisions, viz., to protect public servants against arbitrary action, particularly such as has the effect of separating them from their offices, that the exercise of power under the proviso to rule 1708 should be subject to the requirement of a reasonable opportunity to the public servant concerned to show cause against his discharge. To hold otherwise would be to render the constitutional protection "superfluous, useless and delusive", to use the epithets applied by the Judicial Committee in the well-known case of Gould v. Stuart (1896 A G 575), where certain statutory protections assured to public servants were sought to be overborne by invoking the "pleasure of the Crown." The plaintiff had obtained from the trial Court a declaration, avoiding his discharge on the ground of illegality, and affirming that be was still in the service "of the Crown". In the High Court, that decree was reversed by a Bench of five Judges, two of whom dissented from the majority view. I have come to the conclusion that the decree of the High Court cannot be sustained, and I would therefore, allow this appeal, and in place of the declaration granted by the trial Court, I would substitute a declaration that the discharge of the plaintiff was ineffective in law, for failure to comply with a constitutional requirement applicable in his case, and that he continued to hold his post in f the Railway after the date of his discharge and in despite thereof. FAZLE-AKBAR, J.

I am also of opinion that this appeal should be allowed. For the reasons stated by my Lord the Chief Justice and, were it not that we are differing from the majority decision of the High Court, 1 would not have found it necessary to add any observation of my own. It is unnecessary for me to repeat all the facts of the case. The main question in this case is Can a notice clause for termination of service in the service agreement, which is the subject-matter of this suit, co-exist with the protection afforded to a civil servant under section 240 of the Government of India Act, 19357 According to the appellant Ghulam Sarwar, the Railway Administration, by terminating his service, has infringed the right which is conferred upon a Government servant by section 240 of the Government of India Act. His contention is that he has beer removed from service without the safeguard which that section confers. On the other hand, it was contended, on behalf of the Administration, that it was an ordinary case of a contract being terminated by notice under one of its clauses. The said clause is as follows :- "The Railway servant will serve subject to the following conditions of service, namely, that such service is permanent and non-pensionable and terminable at any time, (a) lay the Railway Administration on one month's notice, or on payment of a month's pay in lieu of notice, (b) by the Railway servant on one month's notice only, that under no circumstances shall he be entitled to gratuity or pension ; though he will be eligible for a gratuity for good, efficient, faithful and continuous service at the discretion of the Agent, and that the authority, which appoints film, hay full power and authority, at any time, for any reason, that may appear to him sufficient, to suspend or dismiss the Railway servant, or otherwise punish him according to the rules of the service in which he is for the time being employed." The question, therefore, is if the notice clause in the service agreement is in any way inconsistent with the provisions of section 240 of the Government of India Act, 1935 which are 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 leis 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 leaf 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, 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." This section was limited to dismissal and reduction in rank. It may, however, be mentioned that although the word "removal" was not actually used in section 240 (3), a reference to dismissal according to section 277 included a reference to removal. Subsection (1) of the section states the rule that a Government servant holds office during the pleasure of the Crown. Sub sections (2) and (3) afford two-fold protection to a Government servant, (1) against dismissal, removal or reduction in rank by an authority suboroinate to that by which he was appointed and (2) against dismissal, removal or reduction in rank until he has been given a reasonable opportunity to show cause against the action proposed to be taken in regard to him. Acting under the provisions of section 241 of the Government of India Act, 1935, the Government have framed what are called Civil Services (Classification, Control and Appeal) Rules in which specific provisions have been made as to how reasonable opportunity is to be given to the Government servant, against whom the action involving dismissal, removal or reduction in rank is proposed to be taken. Similar protection was also given to the Railway servants and they are governed by a separate set of rules collected in the two volumes of the Railway Establishment Code. The scheme a of the rules applicable to the Railway servants is similar to those applicable to the Government servants. Rules 1702-1714 of the Railway Rules reproduce rules 49 and 55 of the Civil Services (Classification, Control and Appeal) Rules with some slight modifications. The provisions of section 240 and the rules made under section 241 thus give a guarantee of employment to the Govern ment servants and the guarantee continues throughout the period of their service. It is, therefore, clear that the Government cannot act in a high handed manner and award punishment to Its servants without following the proper procedure. It was urged that if a servant be dismissed, removed or reduced in rank for misconduct, negligence, in efficiency or for other disqualifications, then the provisions of section 240 (3) must be observed, otherwise the order would be illegal. But, if his service Is terminated under the terms of a contract, then the order will not evoke section 240 (3). The question, therefore, is whether the protection of section 240 (3) will apply to termination of service by a notice under the terms of the service agreement. A similar question came up for consideration before the Supreme Court of India in the case of P. L. Dhingra v. Union of India (AIR 1958 S C 36=P L D 1958 S C (Ind.) 217). The Court held that it is only in those cases where the Government intends to inflict three forms of punishment, namely, dismissal, removal or reduction in rank, that the Govern ment servant must be given a reasonable opportunity of showing cause against the action proposed to be taken In regard to him and that if termination of service is sought to be brought about otherwise than by way of punishment then the Government servant whose service is to be terminated cannot claim the protection of section 240 (3). Das, C. J. observed that- "any and every termination of service is not a. dismissal, removal or reduction in rank. A termination of service brought about by the exercise of a contractual right Is not per se dismissal or removal, as has been held by this Court in Satish Chander Anand v. Union of India (A I R 1952 S C 250). Like-wise the termination of service by compulsory retirement In terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a punishment and does not attract Art. 311 (2), as has also been held by this Court in Shyam Lal v. State of Uttar Pradesh (1955 (1) S C R 26). In either of the two above-mentioned cases the termination of the service did not carry with it the penal consequences of loss of pay, or allowances under rule 52 of the Fundamental Rules. It is true that the misconduct, negligence, ineffciency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is, as Chagla, C. J., has said in Shrinivas Ganesh v. Union of India (58 Born. L R 673) wholly Irrelevant. In short, if the termination of service is founded on the right flowing from contract or the service rules then prima facie the termination is not a punishment and carries with it no evil consequences and so Art. 311 is not attracted." They, therefore, took the view that that Art. 311 (which Is similar to section 240) was confined to penalties prescribed by various rules and that one must look to all the relevant rules to determine whether the order for termination of service was really intended to operate as a penalty or not. Bose, J. In his dissenting judgment remarked :- "I do not think that the gist of the matter is either the form of the action or the procedure followed ; nor do I think it is relevant to determine what operated in the mind of 'a parti cular officer.. The real hurt does not lie in any of those things but in the consequences that follow and, in my judgment, the protections of Art. 311 are not against harsh words but against hard blows. It is the effect of the order alone that matters; and in my judgment, Art. 311 applies whenever any substantial evil follows over and above a purely `contractual one'. I do not think the Article can be evaded by saying in a set of rules that a particular consequence is not a punishment or that a particular kind of action is not intended to operate as a penalty." I think Bose J. has rightly defined the rights and privileges con ferred on Government servants by the Indian Constitution. Without any disrespect I am unable to agree with the majority view that only when termination of service will entail penal consequences, the provisions of Art. 311 (section 240) will be l attracted: In the above case the Court did not consider whether the notice clause in the service agreement was, in any way, inconsistent with the constitutional guarantee contained in Art. 311 (2) of the Constitution of India. Further according to this judgment, even if the termination of service is impelled, by a most frivolous cause, but so long as the Government does not make that cause to be the reason for termination of services, the Courts would not be justified in trying to probe into the motives of the Government in terminating the services of the ,Government servant. This would mean that that constitutional guarantee would be available to the Govern ment servants who are guilty of misconduct; negligence and other disqualification, but net to those who may have unblemished record of services provided their services are terminated under the notice clause of the agreement. I find it difficult to gather such intention from the provisions of section 240 or from the rules. Furthermore, the Supreme Court of India in arriving at its decision has not considered whether under the Railway Rules "removal" includes discharge by notice under the contract. They have also not noticed the difference between rule 49 of Civil Services (Classification, Control and Appeal) Rules and the corresponding rule for the Railway servants in rule 1702 of the Railway Establishment Code. Similarly the provisions of Rule 1708 also did not receive due consideration. These questions have been fully considered by my Lord the Chief Justice in his judgment which I have had the pleasure and advantage of reading carefully. The learned Chief Justice after fully considering the implications of the rules of the Railway Establishment Code has come to the conclusion that discharge by notice under the service agreement is not excluded from the meaning of the expression "removal". I entirely agree with my Lord the Chief Justice and 1, therefore, consider it unnecessary to state anew the same opinion in different words. I wish to add that I have since the argument examined the reported decisions. There has been a good deal of divergence of judicial opinion as to the scope of section

240. There seems to be a disposition to draw highly refined distinction between removal by way of penalty and termination of service brought: about otherwise than by way of punishment. I think that this tendency and its consequence will be lessened if it is borne in mind that the consequence is the same both in removal and termination of service by notice. The effect of the construction contended for by the Railway Administration and adopted by the majority-Judges of the High Court would involve the great injustice of limiting the constitutional guarantee only in cases of punishments. Whereas the construction which has found favour with us is free from such injustice and is quite consistent with the fair object of the Act which is to give statutory protection to the public servant against arbitrary acts of the Government. I, therefore, venture to think that the provisions of subsection (3) of section 240 cannot be evaded by saying that the action taken under the notice clause of the service agreement is not a punishment. In conclusion I must say that in this case the Railway Administration did not handle the case with scrupulous regard to their statutory duties and to the rights of the appellant. I am, therefore, of the opinion that the judgment of the C High Court should be reversed and the appeal allowed with costs. B. Z. KAIKAUS, J.

Ghulam Sarwar, the appellant in this certificated appeal, joined the service of the North-Western Rail way on 26th September, 1922, as an apprentice mechanic; in 1928 he was appointed as a skilled fitter; in 1930 he was appointed a Journeyman Class IV; and in 1933 he was promoted as Senior Chargeman. On the 8th of November 1933, he executed an agreement in favour of the Railway Administration clause 3 of which runs as follows:-- "The Railway servant will serve subject to the following conditions of service, namely, that such service is permanent and non-pensionable and terminable at any time, (a) by the Railway Administration on one month's notice, or on payment of a month's pay in lieu of notice, (b) by the Railway Servant on one month's notice only, that under no circumstances shall he be entitled to gratuity or pension; though he will be eligible for a gratuity for good, efficient, faithful and continuous service at the discretion of the Agent, and that the authority, which appoints him, has full power and authority, at any time, for any reason, that may to him appear sufficient, to suspend or dismiss the Railway Servant, or otherwise punish him according to the rules of the service in which he is for the time being employed." In the year 1951 after having passed through some promotions he bad been appointed Foreman, Grade III. On the 24th of August, 1953, he received a letter from the Railway Administration to the following effect :- "As your services are no longer required by the Administration they are being terminated with effect from afternoon of date (24th August, 1953) with one month's pay in lieu of notice in terms of para. 3 of your service agreement. (2) No appeal lies against these orders". This letter was issued by the Superintendent, Mechanical Workshops on instructions from the General Manager, North Western Railway, which read as follows :- "Please refer to your secret D. O. No. 252-E-/53/1 (Loose) dated 18th August, 1953. 1 accept the finding of the Screening Committee and you may now terminate the services of Kh. Ghulam Sarwar, F. O. Grade 111, Wagon Lifting Shop by giving him pay in lieu of notice required under his agreement. Annexures 'X', 'Z', and Appendices 'A' to 'F' are returned herewith". These instructions, it will be observed, refer to some findings of a Screening Committee. The case of the appellant was that he had never been informed of any enquiry against him, nor was he given any notice of any charge against him, and his discharge, which truly speaking, was dismissal, and which was based on some enquiry behind his back, was wholly illegal. In the order terminating his services it had been stated that no appeal lay. Although the order did not expressly say so the reference in fact was to the proviso to rule 1708 of the Railway Establishment Code, Vol. I, which empowers the General Manager in exceptional circumstances to remove a non-pensionable non-gazetted Railway servant from service in terms of his agreement without application of the procedure prescribed in the rules for removal. The applicant being unable to file an appeal submitted a representation addressed to the Governor-General. However, this representation too had to be submitted through his Railway-superiors and they withheld the representation. The appellant then filed a suit out of which the present appeal arises for a declaration that his discharge from service which was in fact a dismissal or removal, was void, inoperative and mala fide. The trial Court found the dismissal to be mala fide and, at the same time, following a judgment of the Lahore High Court in Mrs. A. Y. Isaacs case (P L D 1954 Lah. 800), wherein it had been held that a clause in the agreement of a permanent employee empowering, the Government to terminate his services on one month's notice was inconsistent with section 240 of the Government of India Act, 1935, held the dismissal to be void and inoperative and decreed the suit. On appeal, the Senior Civil Judge upheld the decree but held that there was no sufficient proof of mala fides. A second appeal to the High Court was heard, in view of the judgment in Mrs. Isaacs' case, by a Full Bench of five Judges. Three of the learned Judges came to the conclusion that the discharge in 'this case did not amount to removal or dismissal and therefore did not attract the operation of section 240 of the Government of India Act, 1935, while the remaining two Judges were of the contrary opinion. Before us Mr. Sharifuddin Pirzada who appears for the appel lant has contended that the clause in dispute is void as being inconsistent with section 240 of the Government of India Act and that the termination of service is in any case within the definition of removal. He has also contended that read as a whole the intention of the agreement executed by the appellant was not that he could be discharged on one month's notice. As the questions arising in this appeal were of great general importance a Bench of seven Judges had been constituted for hear ing it. We at the same time called upon the Attorney-General of Pakistan, the Advocates-General of East and West Pakistan as well as Mr. Fazlur Rahman as amicus curiae to help us in deciding the questions raised. The Advocates-General have supported the appeal, while the Attorney-General has supported it partly, his position being that if the appellant be a permanent employee his appeal should succeed but that he did not concede to him the status of a permanent employee. Mr. Mushtaq Hussain, Addi tional Advocate-General, who appears for the respondent, has contested the appeal on all the points raised by the appellant. The most important question that arises in this appeal is whether the clause in the agreement of the appellant providing for termination of service on one month's notice is consistent with section 240 of the Government of India Act, 1935. If section 240 of the Government of India Act grants to the civil servant security of service to any extent whatsoever then an agreement of this kind made with a permanent Government employee would obviously be inconsistent with that section because if we hold that such an agreement is permissible with a permanent employee the Government may enter into such an agreement with all its perma nent employees and the result would be that there would be no security of service at all. Although this agreement provides for notice of one month, the logical conclusion of a finding in favour of its consistency with section 240 would be that even an agree ment for notice of one day or for termination of service without notice would have to be upheld. The crux of the matter is this was section 240 intended to leave it open to the Government to employ only such servants whose services are liable to termination at its will or on notice for a period or was it a necessary impli cation of the section that servants of the kind whose services can be terminated only after an opportunity to show cause must be employed? If it be held that the section contained a guarantee to civil servant against arbitrary termination of service we must hold that the impugned clause is inconsistent with section 240, for a guarantee against arbitrary termination of service neces sarily implies the employment of persons to whom the guarantee is applicable and any attempt to avoid the guarantee by employ ing only such persons as are not entitled to this guarantee will be an attempt to defeat the law. It cannot in view of section 240 (4) and the proviso to section 241 be contended that section 240 altogether debars the Government from entering into such an agreement with an employee. But if it be held that it can enter into such an agreement with permanent servants the Government would be entitled to run the administration with only a kind of employee whose tenure, being regulated by contract, is not entitled to any protection. This would be inconsistent with a security of tenure whatever the extent of such security. The vital question must therefore be whether section 240 is intended to grant a security of tenure to the civil servant. The judgment under appeal (the majority judgment) held in effect, though not in so many words, that it is open to the Government to run the administration with only contractual employees whose services can be terminated at will, and that whether there are to be any limitations on the power of the Government to determine the services of its civil servants even most arbitrarily is a matter which is entirely in the discretion of the Government. If it chooses, such limitations may exist and if it so chooses they shall not exist. Mr. Mushtaq Hussain, who appears for the respondent, when confronted with the situation that the impugned clause is not consistent with any security of tenure had to argue that section 240 is not at all intended to grant any security of service. On account of certain provisions in the Railway Establishment Code which make a clear distinction between temporary and permanent employees he did not find it possible to contend that the appellant was a temporary employee and accepted that the appellant was a perma nent employee. He urged however that even in the case of a per manent employee such a term was permissible because section 240 was intended not to grant security of service but to prevent a finding of guilty without an opportunity of showing cause in cases where the punishment was termination of service or reduction in rank. According to him, even if this agreement permitting ter mination of service at one month's notice did not exist the Govern ment was entitled to put an end to the services of an employee at any time, provided that this was not done as a punishment and was a simple termination of service. As long as the termination of service was not expressed to be as a punishment it was not within the mischief of section 240 of the Government of India Act. According to learned counsel it did not make the least difference that the real reason for a termination of the services of an employee was his misconduct or inefficiency. If the Government was, for in stance, of the opinion that the servant was guilty of misconduct and was further of the opinion that the misconduct could not be proved it could terminate his services. This would be a simple termina tion of services and section 240 would not be attracted at all. Section 240 was on this view a statutory provision simply giving effect to the principle of natural justice that whenever a person is to be held guilty he should be allowed an opportunity of showing cause, and not a protection against arbitrary termination of service. At the same time, on the argument of learned counsel the existence of the impugned clause lost all importance for, if section 240 did not imply security of tenure the termination of appellant's services would not be hit by the section even if the clause did not exist and if the section did grant security of service the clause would be inconsistent with it. It will be observed that although the dis cussion began with the question as to whether a permanent employee who has executed an agreement of the kind in dispute is entitled to any protection with respect to his tenure it ends with the question whether a permanent employee without such an agreement has any security of tenure. For his contention learned counsel for the respondent relied upon what he regards as the definitions of `dismissal' and `removal' in the Civil Services (Classification, Control and Appeal) Rules hereinafter called the Classification Rules. According to him the word `dismissal' as used in section 240 and the word `removal' as used in section 277 of the Gov ernment of India Act are not used in their ordinary sense, but are terms of art and are used in the sense which attaches to them in the rules framed by the Government. He contends that the words `dismissal' and `removal' as used in the Classification Rules mean penalties imposed as a result of disciplinary pro ceedings and therefore, these words when they appear in sections 240 and 277 should be interpreted only in that sense, with the result that section 240 should be regarded as a protection against punishment only. For a decision of the question whether section 240 is intended to grant a security of service a number of points have to be taken into consideration and it is possible to put forward what I believe to be a forceful argument that section 240 was intended to provide such security and to protect the servant against arbitrary termination of service, but let me, in the first place, consider whether `dismissal' and `removal' have been used in the Govern ment of India Act in the sense in which they had been used in the Classification Rules and whether even if they are so used the effect must be that section 240 should be interpreted as providing no protection against arbitrary termination of service which is not the result of disciplinary proceedings. In order to properly understand the meaning of dismissal as used in section 240 it is necessary to refer to the earlier Government of India Act, 1919. In section 96-B of that Act a limitation had for the first time been placed on the power of the Crown to dismiss its servants. That limitation was that the servant could not be dismissed by an authority subordinate to that which appointed him. The word used in that section was `dismiss' and it would be difficult for any person to contend that it was not used therein in its ordinary sense. In the Government of India Act of 1919 there was no provision corresponding to section 277, making any reference to any rules framed by the Government. The reason why we are now being asked to interpret the word `dismissal' in a special and technical sense is the reference to the Classification Rules and to `removal' in section

277. Had it not been for this reference the rule that words are to be interpreted in their ordinary grammatical sense would have to prevail. If then we were called upon to interpret the word `dismiss' as used in section 96-B of the Government of India Act of 1919 we would have to accept that it was used in its ordinary grammatical sense. The Civil Service Regulations of 1902 which were in force at the time when the Government of India Act of 1919 was passed did not contain the word `dismiss' at all. Regulation No. 418 only provided for "removal of public servants for misconduct, insolvency or inefficiency". If then the word `dismiss' as used in section 96-B is to be inter preted in its ordinary sense what is the meaning that should be attached to it ? In its ordinary sense the word `dismiss' will refer to all terminations of service. I will at once accept that even the ordinary meaning may differ having regard to the context and to the object of a statute, but whatever difference of opinion may exist with respect to such meaning it could certainly not be confined to a termination of service which is the result of dis ciplinary proceedings. In the Government of India Act of 1935 the first limitation on the pleasure of the Crown for the dismissal of its servants was repeated in subsection (2) of section 240 and, at the same time, another limitation, namely, that the servant could not be dismissed without an opportunity of showing cause was added in subsection (3). If the intention of the Parliament was that although the word used in section 96-B of the Act of 1919 and section 240 (2) of the Act of 1935 was the same the meaning of the two words was different, there should have been some indication to that effect and such indication there is none. Nor can one think of any reason for withdrawing partly the protection that had been given by section 96-B of the Government of India Act with regard to the first limitation and that would be the result if we hold that the word `dismiss' as used in section 240 (2) was of narrower connotation than the word `dismiss' as used in section S 6-B. Under the circumstances, h feel justified in assuming that the word `dismiss' was used in section 96-B and section 240 (2) In the same sense. If in section 240 (2) the word `dismiss' was used in, the ordinary sense we should, unless there was some strong reason to the contrary, hold that it has the same meaning in section 240 (3). Not only are there no reasons to the contrary, but the provision in section 277 saying that removal was included within dismissal is further proof of the fact that the word 'dismiss' is used in the same sense throughout. It will now be asked: if the ordinary sense of 'dismiss' was intended, where was the need for reference to removal in section 277 ? What appears to have happened is this. The word 'dismiss' was used in its ordinary sense in section 96.13. It was nsed in the same sense in section

240. When in section 277 reference was being made to the Classification Rules the framer of the Government of India Act apprehended that the word 'dismiss' may be interpreted with reference to the Classifica tion Rules and therefore, he added the word 'removal'. The framer of the Government of India Act was of the opinion that by including removal he was conveying by the word 'dismiss' ail that was included in its ordinary sense and that he was making section 240 applicable to all cases which would have been covered, had the word 'dismiss' simply appeared in section 240 without reference to any rule. The framer was I believe fully justified in the assumption that he made. The word 'removal' as used in section 277 means only termination of service which does not disqualify for future service. Any termination of service to which a future disqualification for service does not attach 1s within this word. Even if we interpret the word removal as it is used in the Classification Rules it is not necessary that the removal should be in the form of a punishment imposed. It should he a termination of service and it should not disqualify. That is all. Apart from all other arguments this will be clear on a consideration of the Explanation to rule 49 of the Classification Rules. The Explana tion says :- "The discharge- (a) of a person appointed on probation, during the period of probation, (b) of a person appointed otherwise than under contract to hold a temporary appointment, on the expiration of the period of the appointment, (c) of a person engaged under contract, in accordance with the terms of his contract, does not amount to removal or dismissal within the meaning of this rule." It will be observed that according to the Explanation the discharge of a person appointed otherwise than under contract to hold a temporary appointment on the expiry of the period of appointment is not removal. Does it not imply that had the discharge been before the expiry of that period it would be removal ? The word 'discharge' obviously refers to termination of service without penal proceedings. Similarly, by this Ex planation the discharge of a person engaged under a contract in accordance with the terms of the contract is not removal. Does this not mean that discharge not in accordance with the terms is removal ? If a person was engaged for a year and his services a were terminate on the expiry of six months not that be a removal within this rule ? If all discharges were beyond the purview of removal, where was the need of saying that discharges only in particular cases and with particular incidents do not amount to removal ? The simple provision should have been that a discharge does not amount to removal. In fact, there should be no need to say even that much' removal meant only a penalty imposed, for a discharge is a mere termination without penal proceedings. The fact that the Explanation refers to terminations which arc not imposed a:: penalties and says some of the at are not removals is clear proof of the fact that removal is not necessarily a penalty imposed as, There is one point which may be clarified here. Assuming that 'dismissal' and 'removal' as used in the Government of India Act are to be interpreted in the sense in which they are used in the Classifica tion Rules, what is the sense which we will attach to the word 'removal' when we have to interpret the Classification Rules ? of course when interpreting the Classification Rules we will attach to the words used therein their ordinary sense unless some thing appeared to the contrary. To 'dismissal' the Classification Rules have given a new effect, that is, when that word used the servant is disqualified for future service. The word 'removal' however has been used in its ordinary sense only. It is a simple termination of service. Another reason for holding that the word removal as used in section 277 refers to all terminations of service is this. The fact that a particular action can be taken as a punishment does not necessarily mean that henceforth that the word used for that action includes the element of punishment. "Whipping" is employed as a punishment with respect to some offences under the Pakistan Penal Code but this does not mean that the meaning of whipping as the word is used in the Pakistan Penal Code includes that it should be as a punishment. Similar is the case with respect to "imprisonment". We should not, therefore, quite apart from the argument based on the Explanation to rule 49, interpret "removal" as used In section 277 in the sense of a penalty imposed in disciplinary proceedings just because there is a reference in section 277 to the Classification Rules. It should also be pointed out that the Classification Rules really do not contain a definition of removal. They only say that a particular action will not amount to removal, the object being that in those cases appeals and other provisions applicable to removal may not be attracted. A little mature consideration will show-at least it has shown to me-that in section 240 the word 'dismiss' could only have been used in its ordinary sense. Let us for a moment assume that 'dismiss' was used in section 240 (3) in the sense attributed to It by Mr. Mushtaq Hussain and see the result. I reproduce below section 240 (3) as Mr. Mushtaq Hussain wants to read it. (I overlook for the present the contention of Mr. Mushtaq Hussain that `reduction in rank' need not be as a penalty):- "Whenever as a result of disciplinary proceedings it is proposed to pass against a civil servant an order which terminates his service as well as disqualifies him from future service, or which reduces him in rank he shall be given an opportunity of showing cause against the order proposed to be passed." I am reproducing this subsection so that the full implication of the argument put forward on behalf of the respondent may be realized with ease. The first question that arises in one's mind on reading it is: was there a need for providing in this constitutional document that a punishment which Is imposed as a result of disciplinary proceedings shall not be imposed till an opportunity of showing cause has been given ? Were there any complaints that the disciplinary proceedings which were being conducted by the officers of the Government were defective and proper opportunity for defence was not being given, and, there fore, a constitutional guarantee was needed for remedying this defect ? The second and even more significant question which suggests itself Is this: why is it that in this section only that termination of service which disqualifies for future service is referred to ? Why is it that for removal separate provision was made in section 277 ? Why could it not be stated In this section that a person shall not be `dismissed or removed' or that his services shall not be terminated as a result of disciplinary pro ceedings until he has had an opportunity of showing cause ? Why was the main constitutional provision limited to an order which disqualifies for future employment ? Let me at this stage state my own views, for it may clarify matters. Had Mr. Mushtaq Hussain argued that the intention of section 240 was to protect the servant against that which in fact amounts to punishment I would not be averse to the argument. I am only rejecting the contention that termination of service must be a punishment imposed as a result of disciplinary pro ceedings. I am of the opinion that the Classification Rules as well as the Government of India Act regarded all terminations of service, except those specified in the Explanation to rule 49 (and which can on principle be held to be not punishments) as punish ments. It was immaterial whether the order was passed as a result of disciplinary proceedings or otherwise or whether it implied a stigma or not. Every termination of service is a punishment for the employee because it inflicts harm on him. That is the criterion for deciding whether it is punishment or not and not whether It Is a result of disciplinary proceedings. The servant places a value upon his employment and if he is deprived of it he stands punished. The Classification Rules do not at all envisage that such a punishment be imposed without going through the proceedings provided in the Rules and the same Is the assumption of section

240. It will be convenient to repro duce here the opening words of rule

55. They are :- " Without prejudice to the provisions of the Public Servants Inquiries Act, 1850, no order of dismissal, removal or reduc tion shall be passed on a member of a Service [other than the order based on facts which have led to his conviction In a criminal Court (or by a Court Martial)] unless he has been informed in writing of the grounds on which it is proposed to take action, and has been afforded an adequate opportunity of defending himself . . . . . .". It should be clear that the order of removal referred to here means an order of termination of service and the intention of the rule is that such an order should be passed only as a result of disciplinary proceedings. The words " order of removal " could not here be interpreted to mean " an order of termination of service passed as a result of disciplinary proceedings ", for then there would be no meaning in saying that the order should be passed only as a result of disciplinary proceedings. As I have already stated when we are interpreting the Classification Rules the word ` removal ' has to be interpreted in its ordinary sense. While rule 55 prohibited termination of service except as a result of disciplinary proceedings it provided in the Explanation to rule 49 some exceptions to this rule implying thereby that the orders referred to in the Explanation may be passed without disci plinary proceedings. The reason is that in those cases the termi nation was not regarded as amounting to a punishment. The fundamental point to be kept in mind is that the order should In fact amount to a punishment and not that it should be expressed as such. If an order of termination of service is passed without a finding of guilty the servant stands punished and it only adds to the punishment that it is inflicted without such a finding. In fact, it may be asserted with some force that even the finding of guilty is there for the true reason is misconduct or inefficiency etc., only the finding is not based on any evidence. Great reliance was placed by Mr. Mushtaq Hussain on the recent case of P. L. Dhingra v. Union of India (A I R 1958 S C 36=P L D 1958 S C (Ind.) 217) in support of his contention that ` dismissal ' and ` removal ' are to be inter preted in the sense which they bear in the Classification Rules. That was a case of reduction in rank. It did lay down that dismissal, re moval and reduction in rank mentioned in Article 311 of the Indian Constitution were indented to refer to punishment but the case goes against the contention of Mr. Mushtaq Hussain and supports the view I take because it was held therein that a person appointed substantively to a post had a right to continue in that post till he was dismissed or removed as a result of disciplinary proceeding and that the termination of the services of such a person was per se a punishment. This will appear from the following passage :- " The foregoing conclusion, however, does not solve the entire problem, for it has yet to be ascertained as to when an order for the termination of service is inflicted as and by way of punishment and when it is not. It has already been said that where a person is appointed substantively to a permanent post in Government Service, he normally acquires a right to hold the post until under the rules, he attains the age of superannua tion or is compulsorily retired and in the absence of a contract, express or implied, or a service rule, he cannot be turned out of his post unless the post itself is abolished or unless he is guilty of misconduct, negligence, inefficiency or other disqualifi cations and appropriate proceedings are taken under the service rules read with Article 311 (2). Termination of service of such a servant so appointed must per se be a punishment, for it operates as a forfeiture of the servant's rights and brings about a premature end of his employment." The learned Judges have accepted that premature ending of employment is punishment in itself. On the point under dis cussion, namely, whether the termination of services of a perma nent employee who has not executed any agreement like the one in dispute would amount to removal and whether section 240 guarantees a security of tenure the case instead of supporting Mr. Mushtaq Hussain is good authority against him. Also according to this case it is not necessary that `removal' must be a result of disciplinary proceedings and what is to be seen is whether it is in fact a punishment. S. A. Rahman, C. J. had agreed with the view taken in this case and in latter passage I have shown that S. A. Rahman, C. J. regarded termination of service which was not the result of disciplinary proceeding as hit by section

240. Before proceeding with the argument I may clarify one point. As my view is that the word ' dismiss ' was used in section 240 in its ordinary sense-the sense in which it was used in section 96-B of the Government of India Act, 1919-an objec tion may be raised that on this view all terminations of service which are excluded by the Explanation to rule 49 of the Classifica tion Rules would be within the definition and therefore section 240 would be applicable to those cases too and this certainly could not be the intention. The answer to this objection is not at all difficult. As I interpret the word 'dismissal ' it would not have made any difference at all to the result if section 277 did not exist and if only dismissal in its ordinary sense had been used in section

240. According to my view section 240 would in that case have been applicable only to the circumstances to which It now applies and no more. Even though the word 'dismiss' was used in its ordinary sense we would have to consider the context and the object for which the word is used and I will presently demonstrate that it would not have been applicable to cases which would be beyond its purview if ' dismissal ' and ' removal ' were used in the sense they carry in the Classification Rules. Suppose a person who is employed for one year, was discharged at the end of year. Would we have held, interpreting the word ' dismiss ' in its ordinary sense, that he was dismissed, and, therefore, was entitled to the protection of section 240 ? The answer is clearly in the negative. The object of section 240 was to provide for security of tenure. Security of tenure only means that the fixed or contractual period or the presumptive or normal period of employment should not be curtailed arbitrarily. If a servant employed for one year was discharged on the expiry of a year, has he any cause for complaint ? Could it be said that his tenure had been curtailed ? And if he was called upon to show cause what was the point on which he would show cause ? He was being discharged because of the expiry of his period of service. His case would be similar to the case of an ordinary permanent employee who reaches the age of retirement. Just as his retirement does not amount to dismissal the termination of service of a person employed for a fixed period on the expiry of that period could not be dismissal. To hold that a show-cause notice is needed in the case of such a servant would amount to saying that the Government had no power to employ servants on fixed periods and that the tenure of all employees, whether permanent, temporary or for an indefinite period, is the same. I have taken for illustration the case of an employee falling under one of the clauses of the Explanation to rule 49 of the Classification Rules, but similar considerations apply to the employees covered by other clauses of the Explana tion, and their cases too would not fall within the meaning of dismissal even if the word was used in its ordinary sense. I have said that 'dismiss' is to be interpreted by reference to the security of service. I can put it in different words and say that the question to consider is whether it in fact inflicts harm and is a punishment. On general principles and without reference to the Classification Rules while the discharge of a permanent employee would be a punishment the discharge in cases referred to in the Explanation to rule 49 would not be punishment. I should to avoid confusion restate here the stage at which the present argument is, for I appear to be accepting that termina tion of service in accordance with the terms of an agreement would not be removal. The point just now under discussion is whether the disputed clause in the agreement of the appellant is consistent with section 240. (I will deal separately with the effect of the disputed clause even if it were not inconsistent with section 240). I have explained that if some security of service was guaranteed by the section, the clause in dispute if It existed in the agreement of a permanent employee, would be inconsistent with the section and Mr. Mushtaq Hussain, who appears for the respondent, faced with this argument has contended that section 240 was not at all intended to affect the power of the Crown to terminate employment according to its pleasure. His main argument is that dismissal in section 240 and removal in section 277 are to be interpreted with reference to the Classification Rules. Before the High Court it had been argued on behalf of the respondent that section 241 (3) of the Government of India Act provides for appeals against " termination of service" and rules 59 and 60 of the Classification Rules provide different criteria for decision of appeals against removal and appeals against termination of service, and, therefore, it should be held that the rules and the Government of India Act contemplate a situation where there is a termination of service which does not amount to a penalty. So far as section 241 (3) is concerned it is sufficient to say that it is a general provision enabling all termina tions of service to be the subject-matter of appeal and cannot be of any help in deciding the question before us. So far as rule 56 is concerned it should be clear on a close study of it that instead of being an argument in favour of the respondent it is a strong argument against him. It will be convenient to reproduce here rule

56. It runs :- " Every person included in one of the classes (1) to (5) speci fied in Rule 14 shall he entitled to appeal, as hereinafter pro vided, from an order passed by an authority in India- (a) imposing upon him any of the penalties specified in Rule 49 ; (b) discharging him in accordance with the terms of his contract if (i) he has been engaged on a contract for a fixed or for an indefinite period and has rendered under either forth of contract continuous service for a period exceeding five years at the time when his services are terminated ; or (ii) he comes under the provision of Rule 58 (3), (c) reducing or withholding the maximum pension, includ ing an additional pension, admissible to him under the rules governing pensions Provided that a person appointed by the Governor-General -in-Council shall have no right of appeal from an order passed by the Governor-General-in-Council." It will be observed that in clause (b) the rule enables the servant to file an appeal even if he is discharged in terms of his contract in certain cases. Now if he is not discharged in accordance with his contract, then has he in accordance with the interpretation put upon removal by learned counsel for the respondent any right of appeal at all ? According to learned counsel for the respondent clause (a) does not apply because no penalty has been imposed upon him. Clause (b) does not apply because he has not been discharged in terms of his contract. If a person who was engaged for a period of six years was discharged at the end of six years, he would have a right of appeal under rule 56 (b). But suppose he is discharged without any disciplinary proceedings on the expiry of three years only. His case, according to learned counsel for the respondent, does not fall under clause (a) and it does not fall under clause (6) and therefore, he has no right of appeal. It is obvious that his case has to be brought under clause (a). It does not matter whether the penalty is imposed as a result of disciplinary proceedings or otherwise, it is a penalty all the same. In fact, as I have already stated, the law does not contem plate a termination of service which is not within the Explanation to rule 49 except as a result of disciplinary proceedings. It is on this assumption that the provision as to appeal has been framed. Rule 58 (3) was a special provision relating to persons appointed by the Secretary of State-in-Council who by virtue of this provision were granted a right of appeal even in cases to which rule 56 (b) would not be applicable. I now proceed to state some reasons as to why section 240 should be regarded as providing some guarantee against arbitrary termination of service and not as a provision simply enabling the servant to be heard before he is pronounced guilty. This has a bearing on the meaning of dismissal too for if a guarantee against termination of service which is not penal was intended eve will have to read this in section 240 and interpret the section accordingly. Section 240 in its opening words states the general proposi tion that civil servants hold office at the pleasure of the Crown. The words " Except as expressly provided in the Act " which appear in section 240 (1) Imply that some limitation on this ` pleasure ' has been imposed by the Act and as the Privy Council held in I. M. Lall's case, section 240 (3)' is an express provi sion qualifying this ` pleasure '. If it is a limitation on the pleasure of the Crown the necessary result is that the power to terminate services at pleasure is affected. The servants who except for subsection (3) of section 240 hold office at the pleasure of the Crown do not to the extent provided in subsection (3) so hold office. That appears to be the plain meaning of subsection (3) and if that be so it cannot be argued that in spite of section 240 the Government can terminate services of its employees at will if it does not express it to be a punishment. If the contention of Mr. Mushtaq Hussain was accepted section 240 would not be a limitation on the pleasure of the Crown, but only a limitation on the power of the Crown to act in direct violence of a well known principle of natural justice, namely, that for a finding of guilty an opportunity for defence should be given. It will be observed that the Government of India Act divided servants into three classes, so far as a necessity for opportunity to show cause against dismissal is concerned, that is, the Defence Services, the Subordinate Police Services and the rest. So far as the Defence Services are concerned, the position was allowed by the Government of India Act, 1935, to remain as it was, that is, they continued to hold office at the pleasure of the Crown without any qualification or limitation. So far as the Subordinate Police Services are concerned, section 240 (3) was applied to them, but it was further provided that by rules framed under section 243 the protection of section 240 (3) could be taken away. To the rest of the services section 240 (3) was applied and this protection could not be taken away at all. If section 240 (3) meant nothing more than an opportunity of showing cause against a finding of guilty why is it that it was applied in this discriminatory manner? Was it intended that the Defence Services should even be held guilty without notice and that so far as the Subordinate Police ranks are concerned their right to contest a finding of guilty should be taken away by rule? Were the rest of the services only regarded as fully entitled to an opportunity to show cause against their conviction? The only reasonable interpretation of section 240 is that it was intended to be a clog on the pleasure of the Crown to terminate the services of the employees. For reasons of public policy, the Defence Services were not granted any such protection and the Subordinate Police ranks were granted such protection only subject to a rule-making power. To say that section 240 was only intended to provide for an opportunity to show cause as against a finding of guilty amounts to saying that the section is of little effect. No statutory provision was needed for enforcing a principle of natural justice. In the exercise of certiorari ,jurisdiction any such finding of guilty could always be quashed and even otherwise what would be the value of such a finding ? If section 240 was intended to protect the civil servant only against a finding of guilty without a show-cause notice and was not intended to be a protection against arbitrary termination of service, what is the benefit that it would confer on him? All that would happen would be that while before the enactment of section 240 his services could be termi nated even on a finding of guilty with respect to which he had no opportunity of defence, after the enactment of section 240 his services would be terminated without any inquiry and without such a finding, and the possible benefit to him would be that if be wanted to apply again for Government service the previous termination of services would not be a legal bar. It is to be remembered that even removal is not a bar to future service, and considering that the question of re-employment would arise only in a very exceptional case, section 240 which is generally believed to be a kind of charter for the civil servants would have been of very slight application and of little benefit. While Mr. Mushtaq Hussain urged in the case of dismissal or removal that it was only a penalty imposed which was within section 240, he conceded, it appears to me quite inconsistently, that in the case reduction in rank section 240 would be attracted, although the reduction occurred not as a penalty but as a result of some administrative adjustment. Learned counsel was unable to state any rational distinction for importing the idea of punishment in one case and not importing it in the other. If the civil servant is entitled even in the case of a simple reduc tion which is not penal to an opportunity to show cause why should he be not so entitled in the case of a termination of service which is not penal ? This is obviously illogical. On the other hand, it can be argued with force that the greater includes the less, that termination of service includes reduction being' an extreme form of it and, therefore, in case of termination of service also there is a right to show cause. Mr. Mushtaq Hussain was unable to cite any case where it may have been held that section 240 (3) was not intended to grant security of service to the civil servants or to be a qualifi cation for the proposition that civil servants held office at the pleasure of the Crown. In fact in the judgment under appeal (I refer to the leading judgment of S. A. Rahman, C. J.) as well as in the judgment in P. L. Dhingra v. Union of India, on which great reliance, has been placed by Mr. Mushtaq Hussain, the security of tenure has been recognised. S. A. Rahman, C. J. after referring to the case of P. L. Dhingra says:

"It has been pointed out in that case that in the absence of a special contract, the substantive appointment to a perma nent post, gives the servant so appointed, a right to hold the post, until, under the rules, he attains the age of superannuation or compulsorily retires after having put in the prescribed number of years' service or the post if abolished and his services cannot he terminated except by way of punishment, for misconduct, negligence, inefficiency or any other disquali fication found against trim, on proper inquiry, after due notice to him. With respect, I ,in disposed to agree with this state ment of the law." The learned Chief Justice holds here that services of the ordinary permanent employee of the Government cannot be terminated except by disciplinary proceeding, or by way of retrenchment, so that he accepts the principle of security of service. Therefore by implication the learned Chief Justice has accepted that removal as used in section 277 includes termination of service which is not a punishment, for section 240 only prohibits dismissal and removal, and if in removal termination of service which is not penal be not included how can it be held that the services of a civil servant cannot be terminated except by disciplinary proceedings. At another place the learned Chief Justice says, "I am disposed to agree with the contention that a wholly arbitrary or capricious removal from service without reference to any term in a contract would in all probability be hit by the section, but I find it difficult to accept the broad proposition that a discharge in accordance with the term in a contract of service would amount to such arbitrary dismissal or removal. It will be observed that the learned Chief Justice is prepared to justify only a discharge in accordance with a contract of service and not a wholly arbitrary discharge apart from such term, so that on the main point which I am considering, that is, whether the discharge of an ordinary permanent servant with whom there is no agreement of the kind in dispute, is hit by section 240, I appear to have the support of the learned Chief Justice. At the same time, as I have already stated, if the learned Chief Justice holds that arbitrary termination of service is hit by section 240 how can he do so unless he interprets `dismissal' or at least `removal' as referring to action which is not the result of disciplinary proceedings, for section 240 is a protection only against dismissal and removal. I do not find any difference between a discharge which is arbitrary and a discharge which is wholly arbitrary, and I understand the learned Chief Justice to say that arbitrary discharges are not permitted by section

240. If, on the other hand, the learned Chief Justice was referring only to a wholly arbitrary discharge and not to every arbitrary discharge, I am unable to see how this distinction can be justified on the wording of section

240. If Government has unqualified power, apart from penal proceedings, to termi nate services of its employees the question as to whether the termination is arbitrary will not arise. But if we come to the conclusion that section 240 prohibited the termination of service of an ordinary permanent employee except for cause, is it possible to hold that the Government is entitled to do away with the ordinary permanent employee altogether and run its administration orb, with special employees, who are not entitled to the protection of section 240 on account of some clause in their contract " If section 240 was intended to protect the ordinary civil servant was it not intended to grant security to the services as a whole ? The Departments of the Government are generally speaking permanent departments in these departments, the Government has generally permanent servants though it may for special reasons employ temporary servants. The intention of section 240 was that the ordinary permanent employees of such departments should have security of service. The section envisages the existence of permanent employees whom it protects. The section does not contemplate at all a situation in which the administration is run only by employees whom section 240 does not protect. If the Government insisted that all its permanent employees should execute agreements containing the clause in dispute and the Government was questioned as to why it so insisted what is the answer that the Government could give ? The only answer it could give was that it wanted to retain the power to dispense with the services of its permanent employees at will and did not want to be forced to serve show-cause notices. But is such an intention legal ? Is this not a direct attempt to defeat section 240 ? Suppose the Government were to enter into a simple agree ment with every permanent employee to the effect that section 24 will not apply to him, will the agreement be valid ? I do no feel any difficulty in holding that it would be invalid. To proceed further step by step, suppose the contract said, "the servant shall not be entitled to any show cause notice in case of dismissal or removal", will the agreement be valid ? The answer has still to be in the negative. But if instead of the agreement being worded as above it contained a clause to the effect that service would be terminable at the will of the Government with out notice, or on notice for a particular period, will the agreement become valid just because of a difference in the words used ? The effect of such an agreement would be the same as that of the two agreements mentioned above. The power of the Government to enter into agreements of this kind is not absolutely barred. It may enter into such contracts with persons whom, for some reason, it does not want to employ as permanent servants. But a permanent employee with such an agreement is not contemplated by section

240. To hold that the Government can enter into such an agreement with every permanent employee will result in section 240 being mollified. It appears to me that the question as to the effect of per mitting the Government to enter into such an agreement with a permanent employee has not been considered in any case. I am unable to find in the arguments addressed to us at the bar any reply to the objection that if the Government is allowed to impose such a term in the case of a permanent employee the result would be that section 240 would be at the mercy of the Government, that is, the protection contained in it would be available only if the Government thought fit it should be availed of, whereas the section was intended to be a limitation on the powers of the Government. Let me repeat here what I said at the beginning of the discussion. If we concede, as S. A. Rahman C. J., held in the leading judgment under appeal that the Government can enter into such agreement as well as frame rules to this effect, theca the Government may enter into such agreement with every Government employee or frame general rules to the effect that the services of all Government employees shall be liable to termination at one month's notice. It is obvious that in such a case the protection of section 240 would not be available for any Government servant. The answer, therefore, to the questions with which we are dealing depends on whether section 240 does or does not envisage such a situation. If section 240 does in fact contemplate that the Government may impose such a term on all its employees then of course this appeal should be dismissed and the question before us answered in favour of the Government. But if the section does not contemplate such a situation then the clause in dispute which will justify such a situation should be held to be invalid. Learned counsel for the respondent relied on the fact that the appellant too was entitled in accordance with his agreement to terminate his services by a notice. There were no arguments before us as to what would be the position of an ordinary employee without such an agreement who wants to terminate his services. There does not appear any provision of law which prevents civil servants from resigning service in cases not governed by the Essential Services Ordinance or the Police Act. However, it is, unnecessary to discuss this matter further, for section 240 is intended to be in my view a limitation on the power of the Government to enter into contracts of termination of service at pleasure and it makes no difference that the civil servant too is in accordance with his agreement entitled to terminate his service. In this connection, it had been pointed out by learned counsel for the appellant that the Essential Services Ordinance had been made applicable to the Railway employees and the appellant was not entitled to put an end to his services. It is not necessary for me to consider the effect of the Essential Services Ordinance on the agreement, for I hold the agreement to be otherwise invalid. I hold that the impugned clause is repugnant to section 240 of the Government of India Act and I now proceed to consider whether the termination of service of the appellant would be removal even if the impugned clause is not inconsistent with section

240. The contention on behalf of the respondent is that it is not removal because it is covered by clause (c) of the Explanation to rule 49 in accordance with which the termination of service of a civil servant in accordance with the terms of his contract is not removal. The above-mentioned clause of the Explanation to rule 49 will be applicable only if there was a contract between the parties. Is there between the Government and its ordinary employee any contract ? A contract as defined in the Contract Act means an agreement enforceable at law. This is also the ordinary meaning of the word when it is used in legal documents. That there is between the Government and the civil servant no contract in the C ordinary sense is not a proposition which needs any elaborate argument. A contract requires consideration on both sides. It is constituted by reciprocal obligations. In the relationship that exists between the Government and the civil servant admittedly there exist no obligations against the Government. The Govern ment is not bound in law to pay any salary to the civil servant or to confer any benefit on him. There is no consideration for the agreement so far as the employee is concerned. It is not necessary to discuss this particular matter further, for Mr. Mushtaq Hussain who appears for the respondent does not contend that there is between the Government and the servant any contract in this sense of the term. His only contention is that the relationship between the Government and the civil servant, although not contractual in the strict sense of the word, has in some judgments and commentaries been referred to as a contract, and in the Explanation to rule 49 the word should be understood in that sense. Learned counsel read to us a passage from the Canadian Bar Review wherein it was stated that "The relationship is contractual so far as non-military servants are concerned". He also cited 1896 A C 575 where in relation even to a Military servant the word contract was used. All that can be said is that the word contract was being used in the citations relied upon by learned counsel for the respondent in a loose sense or for want of a better expression. Learned counsel is not able to cite any case or any dictionary or Law Lexicon in which an alternative meaning of the word `contract' may have been stated. When called upon to state what was the meaning that he attached to the word 'contract' as used in rule 49 all that learned counsel could say was that the relationship between the Government and its servant is a contract. This surely Is not a definition and before learned counsel asks us to hold that the word 'contract' is used in rule 49 in a meaning which covers the relationship between the Government and the servant he must attach some particular meaning to it, for there should first be a connotation of the word before we are asked to app IN-At to a particular case. It is not necessary to cite authorities for the proposition that contract only means a contract, but I may here refer to Wade and Phillips' Constitutional Law (p. 311 of 4th Edition) where it is stated that "the relationship between the Crown and its servants is unilateral" and that "agreements reached between the Treasury and representatives of staffs of Government Depart ments . . . . . do not give rise to contractual rights." In the Government of India Act, 1935, the word 'contract' appears in sections 175 and 240 Learned counsel for the respondent does not contend that the word 'contract' is used in section 240 in a sense different from that in which it is used in the Classification Rules. In section 240 It should unless there appeared an indication to the contrary be held to be used in the same sense in which it is used in section

175. Section 175 is a provision conferring power on the Government to make contracts. When questioned as to what was the meaning of the word 'contract' in section 175 learned counsel for the respondent said it referred to agreements which were binding as well as agreements which were not binding, but learned counsel over-looked that It is meaning less to confer on the Government power to enter into agreements which arc not binding. When questioned as to the meaning of the word 'contract' in section 240 (4) learned counsel said it referred only to the order of the appointment and not to any binding contract. h do not see why the Legislature should describe a simple order of appointment by an inappropriate word. It is really not necessary to deal with this matter at any length, for the wording of the Explanation on which learned counsel relies is itself a strong argument against him. It runs: "Discharge of a person engaged under contract in accordance with the terms of the contract." When the Explanation says "engaged under contract" it necessarily implies that all the employees of the Government are not engaged under contract otherwise the use of these words will be meaningless. There is a fundamental distinction between service under the Rules and Contract Service as was pointed out by Muhammad Munir C. J. in Noorul Hasan case (P L D 1956 S C 331), on which great reliance has been placed by learned counsel for the respon dent. Ordinarily, service under the Government has to be governed by Rules relating to the conditions of service as provider, in section

241. The Government may employ persons under contract in exceptional cases, but such employees are entirely a distinct class. There are between them and the Government binding contracts. The Government would be bound to pay them the salary that in has agreed to pay and to perform the other terms and conditions contained in the contract subject, of course, to any law which may govern such contracts. I find the clause in dispute to be inconsistent with section 240 and I hold that the termination of service of the appellant amounted to removal and being in conflict with section 240 of the Government of India Act, 1935, was void. The appellant is entitled to a decree that he was on the date of the suit a Foreman Grade III. I would allow this appeal, set aside the judgment of the High Court and decree the suit in terms stated above with costs throughout. HAMOODUR RAHMAN, J.

This certificated appeal arises out of a second appeal which was heard by a Full Bench of the High Court of West Pakistan consisting of five learned Judges. The said second appeal arose out of a suit filed by the appellant herein for a declaration that the order No. 814-E/19 (E-1), dated the 24th August 1953, which purported to terminate the appellant's service in terms of his service agreement, was wrongful illegal, inoperative, mala fide and ultra vires and that, notwithstanding the said order, the appellant still continued In service as Foreman Grade III in the North Western Railway, Mughalpura, with all the amenities and privileges attached to the post. The appellant entered the service of the North Western Railway in the year 1922 as an Apprentice Mechanic and after five years of apprenticeship he was appointed on the 7th of July 1928, as a Skilled Fitter on daily wage basis. Thereafter, he became a Journeyman in 1930 in the scale of Rs. 100-10-170 per month. As such Journeyman he on the 8th of November 1933, entered into a hiring and service agreement with the Secretary of State for India-in-Council (acting by arid through the Superintendent, Mechanical Workshop of the North-Western Railway) to serve the said Railway Administration as a Journeyman or in any other capacity to which he may, from time to time, be appointed whether on promotion, reduction or otherwise in any place situate on the said Railway system in accordance with the terms and conditions mentioned in the said agreement. One of such terms and conditions set out in clause 3 of the said agreement was to the following effect :- "

3. The Railway Servant will serve subject to the following conditions of service, namely, that such service is permanent and non-pensionable and terminable at any time, (a) by the Railway Administration on one month's notice, or on payment of a month's pay in lieu of notice, (b) by the Railway Servant on one month's notice only, that under no circumstances shall he be entitled to gratuity or pension though he will be eligible for a gratuity for good, efficient, faithful and continuous service at the discretion of the Agent and that the Authority, which appoints him, has full power and authority, at any time, for any reason, that may to him appear sufficient, to suspend or dismiss the Railway Servant, or otherwise punish him according to the rules of the service in which tie is for the time being employed." The appellant thereafter also continued to earn further promotions in the Railway service and by a process of selection rose, by gradual stages, to the post of Foreman Grade III on the 7th of June 1951 and was admittedly confirmed in that capacity on a scale of pay of Rs. 575-25-650 with effect from the 16th of May 1952. Hi, troubles, however, began to start from February 1953. First his applications for earned leave, which he had asked for to recoup his health, were turned down in February and June 1953. On the 3rd of February, 1953, he was also served with a notice to show cause why his increment should not be withheld for a period of 12 months or any lesser penalty, under the rules regulating discipline and rights of appeal of non gazetted Railway Servants, should not be imposed upon him for serious misconduct, and on the 10th of February 1953, he was actually punished for the said offence and his increment temporarily withheld for a period of 12 months. Then again on the 6th of July 1953, he was served with another charge-sheet to show cause why the penalty of removal from service should not be imposed upon him for having been found, in the course of a surprise check conducted on the 18th of June 1953, absent from duty and wasting his time. Apparently his case, thereafter, went before a Screening Committee and accepting the recommendations of the Screening Committee he was served with the impugned order terminating his service. The order (Exh. P. 7) is in these terms FROM- To- The Superintendent, Mechanical Work- shops, Moghalpura. Khawaja Ghulam Sarwar, F. O. Grade III, C. and W. Shops Moghalpura. Through W. M. Carriage. Quote ref. No. 814-E/19 (E. 1), dated the 24th August 1953. As your services are no longer required by the Administration, they are being terminated with effect from afternoon of date (24th August 1953) with one month's pay in lieu of notice in terms of paragraph 3 of your service agreement.

2. No appeal lies against these orders.. (Sd.) (Illegible). For Superintendent, Mechanical Workshops." The appeals and representations sought to be filed by the appellant against the said order to the higher executive authorities including the Governor-General of Pakistan, were all withheld. In these circumstances, the appellant instituted the said suit, after serving a notice under section 80 of the Code of Civil Procedure, contending that his services bad been wrongfully terminated without holding an inquiry and without giving him any reasonable opportunity of showing cause against the action proposed to be taken in regard to him in violation of the provisions of subsection (3) of section 240 of the Government of India Act, The order was also challenged on the ground of its having been made mala fide by officers who had ill-will towards him. In the written statement filed on behalf of the Federation of Pakistan, through the General Manager of the North Western Railway, it was conceded that the appellant was a confirmed officer in the grade of Foreman Grade III, but it was denied that he had an unblemished or spotless record. It was not, however, claimed that the termination of his service had been made as a punishment for any alleged fault. It was also conceded in the course of the trial that neither had any inquiry been held into the conduct of the appellant before the termination of his service nor had he been given any show-cause notice, but it was maintained that his service had been terminated in terms of his service agreement which the Railway Administration was entitled to do, as section 240 of the Government of India Act, 1935, was not attracted in such a case. The trial Court found that the impugned order was "definite ly an order of dismissal in all respects taken from any point of view," and as the formalities required to be observed under section 240 of the Government of India Act and the rules made under section 241 thereof had not been complied with, the order was illegal and ultra vices, and had also been made mala fide. Hence, it granted a declaration to the effect that the order was illegal and inoperative and that the appellant continued to be in the service of the Crown. The Court of first appeal also upheld the decision that the order of termination of service amounted to removal from service and, therefore, the termination of service could not have been made without complying with the provisions of section 240 (3) of the Government of India Act, 1935, but it disagreed with the finding that the order had also been made mala fide. Hence it amended the order and decree of the trial Court by deleting the word `mala fide' therefrom. It may also be mentioned here that both these Courts came to the above conclusion following a decision of a Division Bench of the High Court of West Pakistan in the case of Mrs. A. V. Isaacs v. The Federation of Pakistan through the General Manager, North-Western Railway (P L D 1954 Lah. 800). Against this the Federation of Pakistan filed the second appeal which. along with several other appeals pending in the High Court involving the sane question, was referred to the Full Bench. The Full Bench by a majority of three disagreed with the view taken in Mrs. A. V. Isaacs' case, and decided that the Constitution Act of 1935, did not bar the making of agree ments for service between the Crown and those who were employed by it, even when the employment was to enure till the age of superannuation fixed under the service rules and in such a contract it was permissible, notwithstanding the provi sions of section 240 of the Government of India Act, 1935, to provide for termination of service in accordance with its terms by serving a notice of the period stipulated therein. In this appeal, therefore, the main question that arises for consideration is whether the conditions of service of a person employed in a non-temporary capacity by the Government can be regulated by a service agreement and whether such a service agreement can validly provide for a method of termination of the said service which is, in any way, different to the method pre scribed under the said Act of 1935 and or without observing the formalities therein prescribed. Learned counsel appearing on behalf of the appellant has, of course, contended that under the scheme of sections 240 to 243 of the Government of India Act, 1935, the intention of Parliament was clearly to guarantee to all persons employed in any civil capacity by the Government that their service shall not be arbitrarily terminated and where it was intended that this guarantee should not be available to a particular category of employees, Parliament took special care to expressly specify the categories or classes of such employees who would not be entitled to this guarantee. Furthermore, that under these provisions the intention manifestly was that the conditions of service of such persons shall be controlled and regulated by rules prescribed in that behalf by the authorities empowered thereunder to make the said rules. In order' to determine the soundness or otherwise of these contentions it is necessary first of all to examine these provisions which I proceed now to do. According to me section 240 (1) by providing that a member of the civil services of the Crown in Pakistan of a person who holds any civil post under the Crown in Pakistan holds office during pleasure except as expressly provided by the said Act, clearly curtails that pleasure. Then the subsequent provisions go on to specify the extent of such curtailment. Subsection (2) of section 240 guarantees that no such person shall be dismissed from service by any authority subordinate to that by which be was appointed and sub section (3) thereof assures him that he will not 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. Having given this general protection it was felt that there may be some cases in which it would not be desirable to adopt this procedure but even so Parliament not being minded to leave it entirely to the discretion of the autho rities in India to deprive a civil servant of the protection being given hook care to add a proviso specifying the cases in which the procedure prescribed need not be followed. Similarly sub section (4) of section 240 created another exception by indicating that, notwithstanding the above provisions, a person who is not already a member of a civil service may be appointed by contract if the Governor-General or the Governor, as the case may be, deems it necessary to secure his services by reason of some special qualifications possessed by him, and in such event may also provide by contract for the payment of compensation to him, if before the stipulated period for which the appoint ment is made the post is abolished, or for reasons not connected with any misconduct he is required "to vacate that post". Thereafter, section 241 (I) goes on to say that except as expressly provided appointments to all civil services and civil posts shall be made either by the Governor-General in the case of tie services of the Federation or by the Governor in the case o the services of a Province or by such person as they may direct, and that under subsection (2) thereof the conditions of service of all persons serving in a civil capacity shall be pre scribed by rules as may be framed by the authorities therein mentioned. But the only case in which it shall not be necessary to make such rules for regulating the conditions of service shall be in the case of persons "employed temporarily on the terms that their employment may be terminated on one month's notice or less", as mentioned in the proviso appended to the said sub section. The anxiety of Parliament to avoid leaving in doubt the rights of any class of servants employed by the Crown in India is further evidenced by subsection (3) of the said section, which goes on to safeguard that no person who is already in service at the commencement of the Government of India Act, shall be placed in a more disadvantageous position by directing that the rules regulating the conditions of service that may be framed shall secure their existing rights with regard to the matters specified therein. It is interesting to note that under clause (b) of the said subsection (3) it is provided that such rules shall provide that every such person shall have the same rights of appeal to the same authorities from any order which- (i) punishes or formally censures him ; or (ii) alters or interprets to his disadvantage any rule by which his conditions of service are regulated ; or (iii) terminates his appointment otherwise than upon his reaching the age fixed for superannuation as he would have had immediately before the commencement of Part III of this Act, or such similar rights of appeal to such corresponding authorities as may be directed by the Governor-General or the Governor as the case may be. Again, under clause (c) it is directed that every other person serving His Majesty in a civil capacity shall have at least one appeal against any such order as aforesaid, not being an order of the Governor-General or a Governor. Thus under this clause every person serving in a civil capacity, whether already in service or appointed after the coming into force of the Act of 1935, is guaranteed at least one right of appeal even to the case of termination of service. It is also worth noting that sub clause (iii) of clause (b) of the said subsection does not speak of termination of service in terms of any service agreement. Under subsection (4) of section 241 of the Government of India Act the right of the appropriate Legislature to regulate the conditions of service of persons serving in a civil capacity is reserved, and rules, if any framed, are to take effect subject to the provisions of any such Act of an appropriate Legislature ; but even in such a case Parliament has taken the precaution of specifying by a proviso that nothing in any such legislative measure shall have effect so as to deprive any person of any of the rights required to be given to him by the provisions of sub section (3) of the said section. Lastly subsection (5) then goes on to preserve the power of the Governor-General or the Governor to deal with the case of any person serving in any civil capacity in such manner as may appear to him to be just and equitable notwithstanding the rules regulating his conditions of service but only so that he shall not be dealt with less favour ably. This subsection, therefore, merely gives a discretion to the Governor-General or the Governor to relax the provisions of the rules. The provisions of section 242 make it clear that the pro visions of sections 240 and 241 also apply, inter alia, to persons in the Railway service. But persons serving in the subordinate ranks of the police forces are by section 243 not entitled to the rights given to other civil servants by this Act. Sections 244 to 263, some of which have since been even omitted from the Act of 1935, deep with posts filled by recruit ment by the Secretary of State for India and certain other special categories of civil employment under the Crown with which the are not concerned here except to notice that throughout meticulous care was taken to deal separately with each particular category of service wherever it was intended to make any special provision with regard thereto. We come then to section 276 which makes certain transitional provisions whereby, until new rules or other provisions are made under the Act of 1935, rules made under earlier Government of India Acts relating to civil services or civil posts under the Crown in India which were in force immediately before the commence ment of the Act of 1935, are to continue in force so far as they are not inconsistent with any of the provisions of the Act of 1935 and are pro tanto to be deemed to be rules made under the appropriate provisions of the Act of 1935 itself. The reference here is obviously to the Civil Services (Classification, Control and Appeal) Rules framed under section 96-B of the Government of India Act, 1915, for, those were the rules that were in force Immediately before the commencement of the Government of India Act, 1935. Lastly, section 277, which is an interpretation section, indicates that the descriptions of certain services given in the Act itself have been taken from the same Classification and Appeal Rules and hence adds a proviso to the effect that "refer ences to dismissal from His Majesty's service include references to removal from His Majesty's service", in order obviously to give to the word "dismissal" a wider meaning than that which it had under the said rules. Looking at the meticulous care with which these provisions have been drafted I find it difficult to resist the conclusion that the intention of Parliament by these provisions clearly was to assure to every person serving the Government of India that he would be guaranteed certain minimum rights or protections. These protections, according to my reading of the' aforesaid sections, were three-fold, Firstly, teat persons already in service would not be placed in a less favourable position than the one in which they were prior to the commencement of the Act of 1935. Secondly, that every person whether already in service at that time or recruited thereafter shall not (a) be dismissed from service or reduced in rank by any authority subordinate to that by which he was appointed and (b) be dismissed or reduced in F rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him, except where the dismissal or reduction in rank is as a conse quence of a conviction on a criminal 6arge or the authority empowered to so dismiss or reduce him in rank is satisfied upon some sufficient reason to be recorded in writing that it is not practicable to give that person such an opportunity. Thirdly, that every person whose service is terminated otherwise than upon attaining the age of superannuation shall have at least one right of appeal. I shall take up for consideration later the exact nature and extent of the protections above-mentioned, but suffice it for the present to say that these protections, whatever their extent, were G clearly intended to be real and substantial. My reasons forl G saying so are two-fold. Firstly, because Parliament itself has made this intention abundantly manifest by specifying in the proviso to subsection (4) of section 241 that even a subsequent legislation of an appropriate Legislature in India shall not have the effect of depriving a person of the rights required to be given to him under the rules framed according to the said section. Secondly, because if such legislation could not take away the rights given event under the rules far less could it take away right given under the substantive provisions of the Act of 1935 itself, for, no legislature in India could presume to amend the Government of India Act itself. The next intention that I can gather from these provisions is that appointments to the civil service and civil posts under the Government shall be muck by the authorities specified in section 241 (1), after consulting, where necessary, the appropriate Public Service Commission set up under Chapter III of the said Act of 1935, on matters relating to the method of recruitment, principles to be followed in making appointments, promotions, transfers from one service to another, suitability of candidates for such appointments, disciplinary matters, etc. The conditions of service of persons so recruited or appointed were furthermore required to be regulated by rules to be framed in that behalf by the appropriate authority mentioned in subsection (2) of section 241, except in the case of persons employed purely temporarily, Only in one case could this normal method of recruitment and regulation of conditions of service be departed from and that too by reason of the express provision in sub section (4) of section 240 where it is considered necessary to secure the services of a person having special qualifications then, if he is not already a member of a civil service, he may be employed under a contract which may also define the terms of his employment and notwithstand4w tile general principle that persons holding civil posts under the Crown shall hold office during the pleasure of the Crown, the contract may even curtail that Measure further and provide for the payment of compensation If he is required to vacate that post before the expiration f the stipulated period of appointment. The scheme of the Government of India Act, 1935, therefore, according to me, appears to be that all appointments to the civil service or to civil posts under the Government shall be made by following the normal procedure; that the conditions of service of such persons shall be as prescribed by rules made in exercise of the powers given under the Act and that there are only two cases in which this normal procedure can be departed from, namely, where a person is employed purely temporarily or where it is desired to employ a man with special qualifications, who is not already in service, upon special terms. In my view, therefore, since the Parliament has expressly mentioned in which cases the conditions of service may be regulated by a contract with the employee, the intention appears clearly to be that, apart from these cases so expressly provided for, the conditions of service of all other employees shall be regulated by rules and not by contract. My reason for saying that the conditions of service of persons employed temporarily may also be regulated by contract is that the proviso to subsection (2) of section 241 has not only indicated that rules need not be framed for regulating their conditions of service but has also said "the terms of their employment may provide for the termination of their service on one month's notice or less". The terms there referred to must, in my view, necessarily mean terms of an agreement or contract. It is necessary at this stage to clarify as to what, according to me, the words "employed temporarily" mean, because the learned Attorney-General has advanced the argument that an employment which Is for an indefinite period but terminable at the will of either the employer or the employee by serving a notice, must necessarily be temporary employment. No employ-ment under the Government is permanent in the sense that it of enures till the death of the employee, for, the usual terra of ail non-temporary employment is up to the age of superannuation prescribed under the rules. I would, therefore, say that if no definite shorter period of employment is specified then employ ment is non-temporary employment as distinct from a temporary employment which, in my view, must be for a definite shorter period. Thus the words "employed temporarily" occurring in the proviso to subsection (2) of section 241 have, in my view, been used merely in contradistinction to the usual non-temporary employment up to the age of superannuation. I am, there fore, unable to agree with the learned Attorney-General that; wherever there is a contract of employment providing for the termination of service on one month's notice or less the employ ment is by its nature temporary. To accept this contention would amount to rendering nugatory the protection given by sub section (3) of section 240, for, then it would be open, notwith standing those provisions, for the appointing authority to obtain from every person recruited to the civil service or appointed to a civil post under the Government his signature to a contract providing for the termination of his service on one month's notice, and thus defeat the object of subsection: (3) of section

240. To that extent, therefore, I also agree with tire decision in Mrs. A. V. Isaacs' case. This interpretation of temporary service also finds support from rule 148 of the Pakistan Railway Establishment Code Volume 1, which is in these terms:

"

148. Termination of service and periods of notice-(1) Tem porary railway servants-When a person without a lien on a permanent post under Government is appointed to hold a temporary post or to officiate in a permanent post, he is entitled to no notice of the termination of his service if such termination is due to the expiry of the sanction to the post which he holds or the expiry of the officiating vacancy, or is due to f mental or physical incapacity or to his removal or dismissal for serious misconduct. If the termination of his service is due to come other cause, he shall be entitled to one month's notice provided he was engaged on a contract for a definite period and the contract does not provide for any other period of notice, and to a notice of 24 hours if he was not engaged on a contract. In the latter case steps should be taken to bring this condition to the notice of temporary employees." "Temporary post" has again been defined in rule 9 (30) of the Fundamental Rules of the Government, Volume I, as meaning "a post carrying a definite rate of pay sanctioned for a limited time". The word `temporary', therefore, appears to have been consistently interpreted by Government as meaning for `a definite limited period'. Thus even under the Railway Code itself the con tract of temporary employment has to be for a definite fixed period, which must necessarily be a period that is less than the age of superannuation. Having said that the Government of India Act, 1935, does not, according to my reading of its provisions, contemplate the, regulation by contract of the conditions of service of persons employed on a non-temporary basis I ought also to indicate that I do not find it necessary to go to the extent of saying that the capacity of the Government to enter into contracts of service with non-temporary servants has also been taken away by these provisions, for, subsection (4) of section 240 and the proviso to subsection (2) of section 241 indicate that the Government has the capacity to enter into contracts of service. It is sufficient, for my purpose, to say that although the capacity to enter into such a contract is there, but no contract which has the effect of taking away or curtailing either the protection given by the Act itself or the right required to be given by the rules framed under the Act, R can be valid or binding. At any rate a contract which seeks to curtail or take away those protections and rights must to that extent be held to be void. To hold otherwise would lead to the absurd result that even though a legislative measure of an appro priate Legislature in India could not deprive a person of those protections and rights, a contract could lawfully produce that result. Again, if it could be possible by a contract to deprive a servant of Government of the rights and protections given to him by those provisions of the Act of 1935, then it would logically follow that even the pleasure of the Crown which is safeguarded by the same provisions could be equally curtailed or taken away by a contract. I, for my part, find it impossible to hold that this could ever have been the intention of the framers of the Govern ment of India Act, 1935. I come now to the consideration of the next question as to the extent of the protection given to a civil servant. It has been argued on behalf of the Railway Administration that even assuming that the conditions of service of a civil servant could not be regu lated by a contract, a servant if be is merely discharged from service cannot avail of those protections, for, the protections given under subsections (2) and (3) of section 240 are only available in the cases of dismissal and reduction in rank and in no other case. These words, it is said, have been used in those provisions in a technical sense and bear the same meaning as they do in the Classification and Appeal Rules which the framers of the Govern ment of India Act must have had before them whilst making these provisions. Indeed, sections 276 and 277, according to this view, make it abundantly clear that the draftsmen of the Act of 1935 had before them the said Classification Rules framed under section 96-B of the Government of India Act, 1915, and were con sciously using these terms in the same sense. On behalf of the appellant, of course, it has been contended that these words are to be given their ordinary dictionary meaning and not read in any technical or restricted sense and, therefore, removal should include discharge. On a careful examination, however, of the text of these provisions I find that in section 240 itself the words "dismissed", "reduced in rank" and "vacate the post" have been used in different subsections and in section 241 Parliament speaks of termination of appointment otherwise than upon reaching the age fixed for superannuation and then again section 277 (1) states that "references to dismissal from His Majesty's service include reference to removal from His Majesty's service". The question, therefore, arises as to whether these words having more or less the same dictionary meaning have been used loosely by Parliament in a tautologous sense. I find it difficult to pursuade myself that the British Parliament bad been guilty in these provisions of indulging in loose expressions, and would prefer to hold that the use of such different expressions in different places is not merely accidental but by design. If, according to the generally accepted rule of interpretation, each word in a statute must be presumed to be susceptible of a separate and distinct meaning, then it seems to me that these different expres sions could not have been used In any tautologous connotation, particularly, since the context in which they have been used clearly indicate, that they were not intended to convey the same meaning. To my mind, even upon a plain reading of the text of these provi sions the conclusion is irresistible that they have been used in a special sense. That they bad been used in the same sense as in the Classification and Appeal Rules is further supported by the direct reference to them by Parliament itself in sections 276 and 277 of the Act. If this had not been so, then there would have been no necessity for Parliament to expressly enlarge the meaning of the weird "dismissal" so as to include `removal'. If, as has been contended on behalf of the appellant, the words had been used loosely in the wide general sense and Parliament merely wished in section 277 to remove the possibility of any misunder standing, then it could easily have said that references to dismissal shall include references to removal, discharge or termination of service, particularly, since by expressly referring to the Classifica tion Rules In the earlier portion of the same section it was indicat ing that certain expressions were being used in the Government of India Act itself in the same sense in which they had been used in those rules. To my mind, by expressly enlarging the meaning of dismissal only to include removal, Parliament was making it quite clear that the word `dismissed' in section 240 had not been used in a wide or general sense, but that it had been used in a special or technical sense and, therefore, it was necessary to enlarge its meaning to include removal also. This, in. my opinion, clearly negatives any inference that the words `dismissal', `reduction in rank' and `termination' were being used in the Government of India Act in any loose sense. Such a reading of these words has also found favour in a large number of decisions in this Sub-continent and I feel hesitant to lightly brush aside the weighty reasons given in them. It is unnecessary for me to catalogue these cases here, for, that has been done in the judgment of the then learned Chi9f Justice of the High Court of West Pakistan in the case under appeal. The only case in which the view now canvassed on behalf of the appellant appears to have been accepted is the case of Shambu Deyal v. Pepsu (A I R 1952 Pepsu 152) but this was overruled by the Supreme Court of India in Shaym Lays case (AIR 1954 SC369). The other cases, namely, Ramesh Chandra v. State of West Bengal (A I R 1953 Cal. 188) and Brojo Gopal Sarkar v. Commis sioner of Police (A I R 1952 Cal. 556) do not, strictly speaking, take a contrary view, for, they proceed on, the basis that discharge on account of some fault on the part of the servant or for inefficiency really amount to a punishment and should, therefore, be treated as dismissal or removal from service even though the device of a discharge may have been adopted to put an end to his service. It has been next suggested on behalf of the Railway Adminis tration that even if these words have been used in the same sense in which they have been used in the Classification and Appeal Rules, this does not mean that removal is anything different from discharge or termination of service. For this purpose reference is made to rule 49 of the Classification and Appeal Rules where, after detailing the penalties that may be imposed upon civil servants, an explanation is added to the following effect :- "Explanation-The discharge- (a) of a person appointed on probation, during the period of probation, (b) of a person appointed otherwise than under contract to hold a temporary appointment, on the expiration of the period of the appointment, (c) of a person engaged under contract, in accordance with the terms of his contract, does not amount to removal or dismissal within the meaning of this rule". It is said that this indicates that if this explanation had not been added discharge would also have come within the terms removal and dismissal. It may also be mentioned here that in rule 1702 of Chapter XVII of the Conduct and Discipline Rules for non-gazetted servants published in the Pakistan Railway Establishment Code, Volume 1, page 174, a similar scheme has been adopted and after detailing penalties a note has been appen ded to the effect that discharge in certain circumstances shall not mean removal or dismissal within the meaning of the said rule. No doubt that would be so if the words are to be read in the general sense but the fact that discharge in certain circumstances mentioned in the explanation has, for the purposes of the Classification and Appeal Rules, been excluded from the ambit of dismissal or removal also indicates the words dismissal and removal were being used there in a restricted sense and, therefore, it became necessary to add such an explanation or note to clarify the position. The fact that in these rules `removal' which does not disqualify from future employment has also been described as a penalty does not, in my view, make it synonymous with `discharge'. Although `dismissal', 'removal' and `discharge' all produce one common result, namely, a severance of the relationship of master and servant, it does not necessarily follow that these words also o5sess the same connotation. The words `dismissal' and `removal' appear to me to have been used in these rules to describe a termination in of service occasioned by some fault on the part of the employee whilst `discharge' has been used to signify a faultless termination of service. The only case In which a departure appears to have been made is in the proviso to Rule 1708 of the Railway Establishment Code, Volume I where the word `removal' has been used, possibly by mistake, to signify a discharge in terms of the service agreement. In this connection it is also worth mentioning that in the note appended to Rule 1702 of the Conduct and Discipline Rules for non-gazetted Railway Servants the discharge that has been excluded from the ambit of removal and dismissal is discharge in terms of a contract for "a specific period" and not for an Indefi nite period and that too upon the expiration of the period of the contract. This, to my mind, necessarily refers to a contract for temporary service only and does not contemplate a discharge in terms of a contract for an indefinite period or for employment of a non-temporary servant. Reference has also been made by the learned counsel for the Railway Administration to the general conditions of service in the Railway Establishment Code, Volume I, and particularly to rule 143 which requires that every non-pensionable Railway servant, except one in inferior (Class 1V) service, shall, after the completion of three years' continuous service, execute a service agreement with the Government, whether employed for a limited period or up to the age of superannuation. Then sub-rule (3) of rule 148 provides that the service of non-pensionable railway servants shall be liable to termination on notice on either side for the periods given in the said sub-rule. The standard forms prescribed for such agreements in Appendix XXIV, for permanent subordinate employees (other than inferior servants and labourers), in which category the appellant was, also contain a clause to the effect that the service is terminable at any time by either party on one month's notice in writing. On the basis of these it has been suggested that since under the railway rules, which had been framed under the Government of India Act, a service agreement is required to be entered into by non-gazetted staff and since the services of such staff can be termi nated in accordance with the terms thereof, such termination of service is also in accordance with the rules. But, if I am right in the view that I have taken of the intention of sections 240 and 241 of the Act of 1935, then no term in such a service agreement can prevail, if it has, in any way, the effect of depriving a railway servant of the rights and protections guaranteed to such a public A servant under the Act itself. The rules cannot override the n provisions of the Act. The provisions, therefore, in the Railway Establishment Code and any contract entered into between a railway servant and the Railway Administration which purport to put an end to the service of a non-temporary employee without giving him the protection guaranteed to him under the provisions of section 240 must to that extent be held to be void and Inopera tive. Thus after excluding these void provisions the position, or my mind, would be that under the rules of service governing a non-temporary servant, his service cannot be put to an end except by way of dismissal or removal or discharge in cases where the post is abolished or he being a person appointed on probation is discharged during the period of probation, or being a temporary employee has either completed the term of his employment or has been given a notice of the period stipulated for In the contract, If any, entered into by him or prescribed under the rules, or the establishment is reduced, or he has failed to conform to the requisite standards of physical fitness or has failed to qualify in certain duties or subjects under the conditions of his service. Discharge for any cause other than those specified in this rule 1702 will not be a termination of service which is excluded from the ambit of dismissal or removal under the said rule after excluding therefrom any clause which is void by reason of any repugnancy with the substantive provisions of sections 240 and 241 of the Government of India Act of 1935. I have come to this conclusion for I too wish, in the words of noble Lord Roche In the opinion which he delivered at the Board of the Judicial Committee of the Privy Council in the case of Venkata Rao (64 I A 55) to "regard the terms of the section as contain ing a statutory and solemn assurance that the tenure of office, though at pleasure,, will not be subject to capricious or arbitrary action" and am as equally anxious as the noble Lord was "that supreme care should be taken that this assurance should be p carried out in the letter and in the spirit" in which it was granted by Parliament. Applying this test to the present case I find that the appellant was neither employed on a contract for a fixed period nor dis charged for any of the causes mentioned above. His termination of service was, therefore, in my view, not a discharge which was excluded from the ambit of dismissal or removal and was, there fore, clearly wrongful. I would, at this stage, also like to mention that the appellant could not, in any event, have been deprived of his right of appeal which was required to be given to him by clause (c) of sub section (3) of section