P L D 1957 (W (PLP)

INAMULLAH, J.

This is a suit for declaration that the plaintiff is an employee of the North-Western Railway Administration holding the post of a Platform Inspector and entitled to all emoluments salary with usual increments and allowances attached to the Post, and for a decree of Rs. 6,176-8-0 on account of salary and allowances from February 1951 to 2nd October 1953. The facts are these : The plaintiff was employed before partition in the East Indian Railway and was posted at Patna Junction Railway Station as Passenger Guide. After partition, the plaintiff opted for Pakistan. At the time when he arrived and his services were placed at the disposal of the North-Western Railway, there was no equivalent post to that which he held in India. He was appointed as Clerk Grade III in the Lahore Division. In November 1949 however, a post of Platform and Luggage Inspector which was declared equivalent to the grade and status of Passenger Guide, fell vacant, and the plaintiff was appointed to that post. The plaintiff, in spite of the opposition alleged in the plaint, took over the charge and worked as Platform and Luggage Inspector till he was asked to explain certain charges which were framed against him. The charge-sheet was dated the 7th December 1950, but the same was served upon the plaintiff on the 9th December 1950. The plaintiff needed copies of certain orders and docu ments in order to meet -the charges levelled against him. He applied for copies of the same on the 11th December 1950. He was informed by a letter dated the 15th January 1951 that the copies asked for were not relevant to the charges framed against him, and that he should submit his explanation within three days from the receipt of that letter. The letter was received by the plaintiff on the 17th January 1951. The plaintiff made a representation against this order to the Divisional Superintendent N.-W. Railway, Karachi. During the pendency of this representation, the plaintiff was informed on the 2nd February 1951 by a letter dated the 1st February 1951 that he was to revert to his substantive post of Ticket Collector Grade I with effect from the 3rd February 1951. The plaintiff contends that he had not been given any reasonable opportunity to meet the charges that were levelled against him. He also contends that he was told that he had been removed from service. It would appear from the cross examination of the plaintiff that he took over as Ticket Collector Grade I at Karachi on the 1st August 1951, and thereafter he was not given any duty. Before I deal with the merit of the case, it is necessary to state the circumstances under which the defendant has been debarred from filing the written statement. The plaintiff filed an application in forma pauperis on the 26th October 1953. The plaintiff was declared a pauper on the 27th July 1954, and the application was registered as a suit. Summons was issued to the defendant. When the matter came before the Additional Registrar (Original Side) on the 1st February 1955, Mr. Bakershah on behalf of Mr. Choithram stated that the latter appears for the defendant. The Registrar ordered the written statement to be filed within two months. On 6th April 1955 the Registrar again gave further time to the defendant to file the W. S, within two weeks and ordered that that was the final extension of time. The matter came before the Registrar on 28th April 1955 when the defendant was debarred from filing the W. S, as no W. S. had been filed within the time allowed by the Registrar, and the matter was fixed before Court for final hearing on the 10th May 1955. On the 10th May 1955, when the matter came before the Court an application under Rule 158 of the Sind Chief Court Rules (Original Side) was made on behalf of the defendant, on which notice was issued. This application was called before me for final disposal on the 6th February 1956. The defendant and its advocate were called but were absent. The application was opposed by Mr. Zamirul Hague for the plaintiff, and it was dismissed. The application was made on the ground that the defendant's advocate was ill and was not regularly attending to his Court work, and also on the ground that the written statement could not be get ready as instructions had to be taken from Multan. On the face of it these grounds were not sufficient to set aside the order of the Additional Registrar (Original Side) debarring the defendant from filing A the written statement. The application does not satisfactorily show why the long time allowed by the Registrar for filing the written statement was not sufficient. The ground suggested was vague and did not explain how the time granted by the Registrar for filing the written statement from time to time was not sufficient. After the application under Rule 158 of the Sind Chief Cuurt Rules was dismissed for default, the matter came for final disposal on the 21st February 1956. On this date Mr. Bakershah for Mr. Choithram, the learned Advocate for the defendant, was present. He did not show any cause much less any good cause why the order passed by the Registrar debarring the defendant from filing the W. S. should be set aside. Though, as held in the case of Hariram v. Rewa chand (A I R 1945 Sind 98), a defendant who has made a default in appearance and against whom the Court has decided to proceed ex-parte, is not entitled to appear and defend the suit at any subsequent time as of right and without assigning good cause, in the B present case I allowed Mr. Bakershah for Mr. Choithram to cross-examine the plaintiff. Mr. Bakershah cross-examined the plaintiff at length. I also allowed him to argue for the defendant at length. The main contention on which the plaintiff has sought for s declaration as prayed for is two-fold. In the first place it has been contended by Mr. Ishaque, the learned Advocate for the plaintiff, that no reasonable opportunity had been given to his client to show cause against the charges framed against him. In the next place it was urged by him that sub rule (xiv) of rule 7 as given in the "North-Western Railway Advance Chapter No. 5 of Personnel Manual Rules Regulating Discipline and Rights of Appeal of Non-Gazetted Railway Servants" has not been complied with. The question of giving a reasonable opportunity within the meaning of section 240 (3) of the Government of India Act, 1935, would only arise in case where the Government servant has been dismissed or reduced in rank. In the present case it would appear, in the first place, on the allegations made in the plaint that the plaintiff has been dismissed. In this connection paragraphs 11 and 12 of the plaint may be reproduced :- "That this victimisation, undeserved, malicious and wrong ful as it was, told badly upon the health of the applicant, involving him and his entire family in hardships and misery. He also fell ill and had to remain on sick leave. "That while on sick leave the applicant was conveyed information that he is being sought to be transferred in the far off division of Rawalpindi and later on he was informed that he stands removed from service". In his cross-examination to the learned Advocate for the defendant, the plaintiff stated that he had fallen ill in February 1951 and was admitted in the Railway Hospital. On produc ing a medical certificate after recovery, he performed the duty as Ticket Collector at Karachi on 1st August 1951. He further stated that thereafter he had not been given any duty whatsoever. It is clear from the cross-examination that no suggestion whatsoever has been made by the learned Advocate for the defendant that the plaintiff had given up service of his own accord or was removed from service after due compliance with the rules and the provisions of section 240 of the Government of India Act, 1935. It was the duty of the defendant to have put its case, whatever it may have been, to the plaintiff in his cross-examination to show that the fact about the wrongful dismissal of the plaintiff was not admitted by the defendant. It has been clearly stated in paragraph 14 of the plaint:- "That the applicant maintains that the so-called order of reversion (and those in consequence and as result thereof vie., the order, if any, passed transferring the applicant to Rawalpindi Division and the order, if any, passed removing the applicant from service), all these are wrongful, contrary to rules, regulations and conditions of service applicable to the applicant". It is also noteworthy to mention that in the notice under section 80 of the Code of Civil Procedure dated the 17th July 1953 it was pointed out that the plaintiff had received in formation that he had been removed from service and the relief claimed was : "that the so-called reduction in grade, the so-called transfer and removal of Mr. Siddiqi is all wrongful ineffective in law and not binding on him". Under these circumstances, when the plaintiff had made a clear case from the very start that he had been removed from service, it was the clear duty of the learned Advocate for the defendant to have put his case, if he had any, to the plaintiff in the cross examination. It would appear that in the cross-examination of the plaintiff no attempt had been made to contradict the allegation of the plaintiff that he had been removed from service. The only conclusion, therefore, that can be drawn from the absence of any question regarding the removal of the plaintiff from service by the learned Advocate for the defendant is that the plaintiff's allegation as regards this fact is correct. At this stage I may also mention that no sugges tion whatsoever has been made in the cross-examination of the plaintiff that the provisions of section 240 of the Govern ment of India Act had been complied' with while removing the plaintiff from service. It was also urged by Mr. Ishaque that the provisions of subsection (3) of section 240 of the Government of India Act, 1935, would be attracted inasmuch as the plaintiff has been reduced in rank. In support of his contention he relied upon the order dated the 1st February 1951, annexure 'G' of the plaint which reads as under :- "With reference to your reply to notice No. 729-E/9-PI dated 7th December 1950, you are hereby informed that the Divisional Commercial Officer Karachi has passed the following order :- "You are reverted to your substantive post of Ticket Collector Grade I with effect from 3rd February 1951 forenoon". It was contended by Mr. Bakershah that it was only a reversion, and therefore it cannot be said to be reduction in rank so as to attract the provisions, of section 240 of the Government of India Act. In reply to this it was contended by Mr. Ishaque that it is wrong to say that the plaintiff held the substantive post of Ticket Collector Grade I. It was on the other hand contended that the plaintiff held the substan tive post of the Platform and Luggage Inspector. The contention of the learned Advocate for the plaintiff that the plaintiff held the post of the Platform and Luggage Inspector as substantive appointment is correct. It cannot be said that he held the post of Ticket Collector Grade I as his substantive appointment. From a perusal of the order dated the 1st February 1955, reproduced above, it is at least clear that a distinction was sought to be made between the post of the Platform and Luggage Inspector, which the plaintiff held at the time when the order was passed, and that of the Ticket Collector. Grade I which was of a lower rank. In this connection reliance 'was placed by Mr. Ishaque on Exh. 5/1, which is a letter addressed by the V General Manager to the Divisional Superintendent Karachi. The relevant portion of this letter reads thus :- "It may, however, be pointed out that Mr. Kazim Ali being substantively Signaller Grade I is not eligible for promotion to the post of P & L Inspector Grade I where as Mr. Laique Ahmad Siddiqui who came to this Railway from E. I. R. as a result of partition, was Passenger Guide,. pay Rs. 120 on his parent Railway and this post being treated as equivalent to P & L Inspector Grade I of this Railway, he was consequently absorbed as such". This letter has not been challenged by the learned Advocate for the defendant. In the above letter there is nothing from which one can read that the plaintiff had been absorbed as Platform and Luggage Inspector Grade I temporarily, and not substantively. Unless this qualification appear in the above letter, there is no reason why I should read that the plaintiff was taken as Platform and Luggage Inspector Grade I only temporarily or in an officiating capacity. In the absence of the word "temporary", or "officiating", or "acting", I am inclined to hold that the plaintiff held the post of Platform and Luggage Inspector permanently. In this connection it was also urged by Mr. Bakershah that in the charge served on the plaintiff he was mentioned as holding the post of Platform and Luggage Inspector in an officiating capacity, and the plaintiff in his reply to this charge-sheet has not taken any objection to that. It was argued by Mr. Ishaque in the first place that the plaintiff was called upon by the charge-sheet to show cause against certain charges levelled against him, and he was not required to refute if the Railway had wrongly mentioned that he was officiating as Platform and Luggage Inspector. Moreover, it would appear from sub-rule (ix) of rule 14 of the Advance Chapter No. 5 of Personnel Manual of the North-Western Railway, that if an employee, who is officiating in a higher grade, is put back to the lower grade as a disciplinary measure, it would amount to reduction in rank. Sub-rule (ix) to rule 14 reads as under :- " 'Reduction' to lower grade would be involved when an employee holding an officiating or substantive appointment in a grade is placed in' a louver substantive or officiating grade, as a disciplinary measure. 'Reversion' will be the case when an individual holding an Officiating appointment is placed in a lower grade due to his inefficiency, lower position on the seniority list, etc.". So far as the order dated the 1st February 1951, already reproduced above, is concerned, there is nothing to show as to why the plaintiff had been reverted to Ticket Collector Grade I. The order is silent as to the ground on which he had been reverted. The interpretation beneficial to the subject may be put on the order in question. If an interpreta tion beneficial to the plaintiff is to be put, I may hold that the plaintiff has been reverted as a disciplinary measure, and not because of inefficiency. Moreover, if a Railway servant is reduced for inefficiency or misconduct to a lower post, rule 14 of the Personnel Manual, Advance Chapter No. 5, at page 23, requires that the authority ordering the reduction shall state the period for which it is effective and whether, on the expiry of that period it shall operate to postpone future increments or to affect the railway servant's seniority and, if so, to what extent". In the absence of any mention in the order in question regarding the period for which the reduc tion was to be effective, I would take it that reduction was not effected because of inefficiency or misconduct, but as a disciplinary measure. In this view of the matter I would hold that the order dated the 1st February 1951 did amount to reduction. I have already mentioned that so far as the removal of the plaintiff from service is concerned, the provisions of sub section (3) of section 240 of the Government of India Act, 1935, have not been complied with. No attempt whatsoever has been made by the learned Advocate for the defendant to show that, as regards the dismissal, the provision of sub section (3) of section 240 of the Government of India Act. 1935, have been complied with. On this view of the matter, the plaintiff would be entitled to the relief of the declaration that he has prayed for. Moreover, the plaintiff on the service of the charge sheet, had asked for copies of certain documents in order that he may be able to refute the charges levelled against him. The copies of these documents were not supplied to the plaintiff on the ground that they were not relevant. In my opinion, whether the documents were relevant or not in order to meet the charges levelled against the plaintiff, it was for the plaintiff to determine this question, and not the Railway authorities. It was, no doubt, open to the Railway authorities not to grant the copies on any other valid ground but not on the ground that those documents were not relevant' to the charges framed against the plaintiff. In my opinion, the refusal to grant copies of the relevant documents, which were in the possession of the Railway authorities, and which may have helped to refute the charges levelled against the plaintiff, would amount to non-compliance of the provision of subsection (3) of section 240 of the Government of India Act, 1935. Mr. Ishaque, for the plaintiff, also contended that in this case sub-rule (xiv) of rule 7 of Advance Chapter No. 5 of the Personnel Manual of the N.-W. Railway also has not been complied with, and therefore any order that has been passed against him either reducing him in rank or removing him from service was bad and not effective in law. Sub-rule (xiv) of rule 7 reads as under :- "When as a result of a departmental enquiry, the punish ing authority considers that the offence which has been the subject-matter of the enquiry merits dismissal, discharge or reduction, that authority should, before imposing any such penalty give another opportunity to the accused by asking him again, in writing . . . to show cause why the proposed penalty should not be inflicted ; while doing so the accused be allowed an interval of seven clear days if the proposed penalty is dismissal or in the case of discharge seven or three days (according as the employee concerned has or has not completed seven years' service) and three days if it is reduction, to submit his explanation which should be duly considered before final orders are passed". It has not been suggested by the learned Advocate for the defendant that the Railway authorities had complied with this provision of the rule. The learned Advocate for the plaintiff has also claimed arrears of pay. So far as this question is concerned, it has been settled by the well known case of the High Commissioner for India and another v. I. M. Lal, (A I R 1948 P C 121 = P L D 1948 P C 150), that no suit would lie for arrears of pay against the Government. This view has been confirmed by the Supreme Court in the case of Noorul Hassan v. Federation of Pakistan, (P L D 1956 S C (Pak.) 331) : Munir, C. J. at page 337 has observed :- "that no such servant (i.e., a servant of the Crown) could maintain a suit for compensation or arrears of salary on the ground that some provision of the Government of India Act had not been complied with in dismissing him, though he could bring a suit for a declaration that some constitutional provision not having been complied with in dismissing him the dismissal was inoperative and that despite such dis missal he continued to be in the service of the Crown". I would hold that the plaintiff is not entitled to any arrears of salary. The suit is decreed only for the declaration prayed for, and as regards the arrears of pay the suit is dismissed. As the suit has partly succeeded and partly failed, I order the parties to bear their own costs. A. H. Order accordingly.