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Appeal from Appellate Decree No. 227 of 1960, decided on 9th April 1964.

, S. 80‑Words "and the plaint shall contain statement that such notice has been so delivered or left" Provision procedural‑Notice in fact given -Mere absence of averment about such notice in plaint‑Not fatal.

, Art. 177 (b) and Govern ment of India Act, 1935, S. 240 (3)‑Agreement of service tenden tious of defeating constitutional provision ‑ To be taken with caution‑Termination from service, not simpliciter, but in wake of charges levelled against employee‑No amount of sugar‑coated expression terminating service will save it from mischief of con stitutional guarantee and protection of show‑cause notice.

Agreements of service that are tendentious of defeating the constitutional law of the land have to be taken with alacrity and caution. To allow parties to obviate the fundamental con stitutional law by provisions suitable to themselves, may shake the stability of the service itself. When in fact, the termination of service of a Government servant is tantamount to removal or dismissal, no amount of sugar‑coated expression of it will save it from the mischief of section 240 (3) of the Government of India Act, 1935 or Article 177 (b) of the Constitution of Pakistan, 1962. Where, therefore, a person was removed from service, in the wake of charges levelled against him, on one months' pay in lieu of notice in terms of contract, it was held that the antecedents behind the termination of service were clear enough to indicate that it was imposed by way of punishment and it was not a case of termination simpliciter. That being so, the employee was entitled to a proper notice and opportunity to save his face.

S. 240 (3) read with Pakistan Railway Establishment Code, r. 1708 proviso‑Proviso to r. 1708, Pakistan Railway Establishment Code ‑ Safe‑guard against extreme cases ‑ Not to be easily or lightly resorted to ‑ Exercise of power by General Manager under proviso ‑ Subject to requirement of reasonable opportunity being given to public servant to show cause against his dis missal ‑ Notice clause in service agreement that service was terminable on one month's notice or on payment of one month's pay in lieu of notice ‑ Service, nevertheless, held, governed by constitutional provisions ‑ "Termination by notice" and "removal"‑Not distinct‑Declaration that employee continued to hold his post after date of illegal termination till age of superannua tion attained during pendency of suit‑Granted‑ Constitution of Pakistan (1962), Art. 177 (b).

Khwaja Ghulam Sarwar v. Pakistan through the General Manager, P. W. R. Lahore P L D 1962 S C 142 rel.

Md. Jani Alam, Assistant Government Pleader for Appellant.

Suresh Chandra Bose for Respondent.

This is a defendant's appeal against the judgment and decree passed by the Subordinate Judge, Dacca, in Title Appeal No. 174 of 1957, confirming those of the Munsif, Dacca, in Title Suit No. 166 of 1856 ( ).

Plaintiff‑respondent's suit was for declaration that the order of removal of plaintiff from service under defendant Administra tion was illegal, ultra vires, without jurisdiction and not binding upon the respondent and that the respondent was to be deemed to be still in service.

The respondent's case was that he was a Sub‑Assistant Surgeon appointed as such by the appellant Administration on 21‑7‑29, and duly confirmed in the said post on 21‑7‑31; that after the long period of service running from 1929 he was removed from his service from 16‑12‑53, by a letter of the Chief Medical Officer dated 3‑12‑53. Several appeals were made against the order of termination of the respondent's service without any effect. He was removed from his service without any notice and without any opportunity to show cause against the action proposed against him. He was not serving under any special terms or conditions of service which could take away the. fundamental rights provided to him as a civil servant under the provisions of the constitutional law of the land.

The defendant‑appellant Railway Administration made their appearance and filed a written statement contending inter alia that the suit was not legally competent to proceed and that the plaintiff had chosen a wrong forum. It may be noted here that there is no contention before me presently as to the forum. It was also pleaded that no notice under section 80 of the Code of Civil Procedure had been duly served. Allegations in the plaint concerning the service of the said notice were specifically denied; and it was pleaded that the present suit was bad under section 42 of the Specific Relief Act. Further, that the plaintiff's work was not satisfactory and he neglected his duties while he was posted at Dacca; that due to his laches he was transferred to Shaistaganj and during his stay there, several complaints were lodged against him including one that young wife of his medicine carrier was abducted by him and that there was lack of confidence among the staff who were to be treated by the respondent, in respect of his morality; that there were other complaints against the respondent, namely, that of acceptance of illegal gratification from the staff and issuing false certificates. It was further pleaded that the aforesaid allegations proved that the respondent failed to afford the requisite skill which had been expressly or impliedly promised under the service agreement amounting to breach of legal duty and, therefore, misconduct; that in the circumstances, as above, though the respondent could be removed for his misconduct, the appellant refrained from removing him from service by way of penalty and dealt rather leniently towards him by simply terminat ing his service in terms of service agreement executed by the respondent and under rule 148 of the Railway Establishment Code.

The trial Court, in those circumstances, decreed the suit in part against the defendant, declaring that the order of removal of the plaintiff‑respondent from service from 16‑12‑53, was illegal, ultra vires and without jurisdiction. This Court, however, refused to give any declaration that the respondent was still in service on the ground that by the time of the decree the respondent had passed his age of 55 years in service.

The appeal to the Subordinate Judge by the defendant -appellant, was dismissed with costs to the respondent throughout and ‑the judgment and decree of the trial Court were confirmed.

Mr. Jani Alam, learned Advocate appearing for the appellant, has firstly urged ground No. 8 of the Memo., of appeal which is as under:---

"8. For that the Court below ought to have held that no legal and valid notice under section 80, C. P. C., was served on the defendant."

The ground, as it is, seems merely to mean that no legal and valid notice under section 80 of the Code of Civil Procedure was served on the defendant. The grievance made, as in the ground, is not that there has been no fulfilment of the second part of section 80 of the Code of Civil Procedure, namely, that the plaint should contain a statement that such notice has been given.

The finding of both the Courts is that notice under section 80, of, the Code of Civil Procedure dated 19‑6‑56, the postal receipt of registration of the notice dated 19‑9‑56, and the postal acknowledgment receipt thereof dated 20‑9‑56, were filed by the plaintiff on the very date of the filing of the suit, those being marked Exhs. 2, 3 and 4 respectively and that from the postal acknowledgment receipt, it appeared that the notice was received on 20‑9‑56, and that the suit was actually filed on 22‑I1‑56, which was after sixty days from the date of receipt of the notice, none of the D. Ws., having made any grievance against the notice under section 80 of the Code of Civil Procedure, there does not seem to be anything wrong regarding the service of the notice. The contention, however, has been made by Mr. Jani Alam which is not directly covered by the ground mentioned above, namely, that in the plaint there is no averment that notice has been given and as such, there is no valid suit. It is true that there is no such averment in the plaint itself; but paragraph 3 of the written statement indicates that the defendant only denied all the allega tions in the plaint concerning service of notice under section 80 of the Code of Civil Procedure, thus showing that they did not make any grouse about the absence of averment about the notice in the plaint itself. This averment, as contemplated by second part of section 80 of the Code of Civil Procedure, is, after all, a rule of procedure. Notice having been given in fact this want of averment is not fatal.

To enforce literally a rule of procedure of the present kind may tend to subvert justice instead of advancing it. It is no use being hypocritical in such cases when the notice was actually served and when the enclosure filed along with the plaint indicated that notice had been given. Mr. Jani Alam has submitted that mere filing of the notices and receipts along with the plaint, was not enough to get over the requirement of the second part of section 80 of the Code of Civil Procedure. He has referred to rule 14 of Order VII of the Code of Civil Procedure which is as under:‑----

"14. (1) Where a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint.

(2) Where he relies on any other documents (whether in his possession or power or not) as evidence in support of his plaint, he shall enter such documents in a list to be added or annexed to the plaint."

and on the basis thereof has argued that those were filed as required by the order quoted and not in terms of section 80.

Mr. Bose for the respondent has rightly pointed out that what those rules required was that the documents on which the party based its claim, were to be filed thereunder and that the notices in the present case were not documents on which the respondent based his claim. Sub‑rule (2) of the above speaks of the list of documents as evidence to be filed. The copy of notices filed by the respondent is not covered by sub‑rule (2) which speaks of list of documents. Mr. Bose has, by way of abundant caution for whatever it is worth, also filed an application for amendment of the plaint, so as to include the express averment required. In those circumstances, the purpose of filing those notices seems to have been to indicate that the respondent had complied with the requirement of section 80 of the Code of Civil Procedure.

The ground therefore of the non‑fulfilment of the require ments of section 80 of the Code, as urged by the learned Advocate, has no force.

Mr. Jani Alain has next tried to justify the removal of the plaintiff‑respondent from service by arguing that the termination was in terms of contract and that it was a case of termination on one month's pay and not a case of dismissal. He his argued that the agreement Exh. A having provided for termination with one month's pay, the respondent could not invoke the Constitutional Law to his aid. He has also argued that the termination was not a punishment, although misconduct of the respondent called for punishment and the termination not being by way of punishment, there was no question of opportunity being given.

Agreements that are tendentious of defeating the Constitutional Law of the land have to be taken with alacrity and caution. To allow parties to obviate the fundamental Constitutional Law by provisions suitable to themselves, may shake the stability of the service itself.

When, in fact, the termination is tantamount to removal or dismissal, no amount of sugar‑coated expression of it will save it from the mischief of section 240 (3) of the Government of India Act or our Constitution. The antecedents behind the termination in the present case are clear enough to indicate that it was imposed by way of punishment.

Furthermore, there are decisions including that of our Supreme Court to indicate that the finenesses of distinction between removal and termination in such cases, are not to be encouraged and approved in the interest of the integrity of the service. Here it was apparently not a case of termination simpliciter, but it came in the wake of the charges levelled against the respondent. That being so, the respondent was entitled to a proper notice and opportunity to save his face.

Mr. Jani Alam referred also to rule 1708 of the East Bengal Railway Discipline and Appeal Rules which is as under:‑--

"1708. Removal from service.‑A railway servant shall be liable to be removed from the service in the following circum stances, 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 to (i) Head of Department, (ii) Deputy Head of a Department and (iii) Divisional Superin tendent."

He has also referred to item. (viii) (a) of Appendix I, Schedule of powers, Eastern Bengal Railway Discipline and Appeal Rules. This shows the "authorities with their respective powers to the extent to which they ‑can impose penalties detailed in column L" Column I shows that the incumbent could be removed from service without assigning any reason (in terms of service agree ment) and this power could be exercised fully by the Head of Department, except in the case of pensionable staff, the respon dent in this case being a non‑pensionable staff. The Appendix, as placed before me, only gives the limits of the power of imposing penalty. Since Mr. Jani Alam has argued that the termination was not by way of penalty, it is no use referring to the Schedule which gives the extent to which penalty can be imposed. The case of the appellant not being that the termination was by way of punishment or penalty, this Schedule of powers, as given in the Appendix, does not help the appellant's case in any way.

The list of officers declared to be Heads of Departments under Appendix XXXVIII of Pakistan Railway Establishment Code which includes the Chief Medical Officer who gave the notice of termination in this case, as placed before me by Mr. Jani Alam, also does not show that there was any delegation to him in terms of rule 1708, nor does Appendix I, Schedule of powers, shows that the officers mentioned therein are the delegates of the General Manager. The Appendix only relates to the powers of different officers in the matter of punishment.

It does not, in those circumstances, appear to me that Appendix XXXVIII, or Appendix I as referred to, relate to any delegation of the power of the General Manager.

Delegation to the Chief Medical Officer could not be proved in the case, and it is not possible to infer this delegation in the light of what has been placed before the Court on the point.

The question of delegation apart, the very power of the General Manager 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 and without assigning any reason, arises only in exceptional circumstances, which means that the exceptional circumstance has to be shown and that it has to be shown that the General Manager considered it desirable to terminate the service.

The proviso to rule 1708 being by way of safeguard against extreme cases, it should not be easily and lightly resorted to and applied. Reliance has been placed on the decision in the case of Khwaja Ghulam Sarwar v. Pakistan through the General‑Manager, P. W. R., Lahore (P L D 1962 S C 142), in which the appellant, a perman ent official (Foreman Workshop) in Class III Service of North -Western Railway, challenged by suit the order by which his service of some 25 years' duration was brought to an end by a notice purporting to be issued under a clause in his Service Agreement, which provided that the service was permanent and non‑pension able 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 and the case for the appellant in that case was that despite the notice clause in the service agreement his service was governed by the Constitutional provisions in the Government of India Act, 1935.

The facts and circumstances disclosed in the Supreme Court case mentioned, are very similar to the facts and circumstances of the present case. The respondent in the present case also has been in service for nearly 25 years and his services were dispensed with by taking advantage of the terms as to one month's notice or payment of a month's salary in lieu of notice in the Service Agreement. The majority of the Judges of the Supreme Court held in the similar circumstance, as above, that the termination of the service by notice of one month was void and inoperative and that the employee remained in the service of the Railway on the date of filing of the suit. Cornelius, C. J., declared that the appellant continued to hold his post in the Railway after the date of his discharge and in despite thereof. Fazle Akbar, J., held that the judgment of the High Court should be reversed and the appeal allowed with costs. Kaikaus, J., declared that the appellant was entitled to a decree that he was on the date of the suit a Foreman Grade III. Hamoodur Rahman, J. held that the appellant continued to be in the service of the Railway Administration till the age he would have attained superannuation. Murshed, J., also declared that the appellant was, at the date of the filing of the suit, wrongfully dismissed and that he was, on that date a Foreman Grade III in the service of the Railway concerned. In this Supreme Court decision, it is to be noted, rule 1708, as relied upon by Mr. Jani Alam, came in for some consideration. The force and extent of this rule in the background of the fundamental Constitutional Law as to the terms and conditions of service, as observed by the learned Chief Justice in course of the decision is worth quoting as under:‑--

"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 1935, 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 require ment 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 validity 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 "reasonable opportunity" aforesaid, is clearly unconstitutional and of no effect.

The view which I have formed as a result of the foregoing examination may now be summarised. The Constitution Act of 1935 contemplated contracts of employment under Govern ment, being entered into, expressly in special cases, but, by implication, in a general way. It did not, however, by expres sion or omission, invest such contracts with any degree of sanctity, vis‑a‑vis the protections which it was expressly con ferring 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 recognised principle of construction to the statutory rules 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 in official has become surplus to requirements, or which otherwise involve nothing in the nature of a stigma or an adverse opinion regard ing 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 reason able opportunity of showing cause against the order. If the General Manager has given by the plaintiff such an opportunity, he may have succeeded in placing before him what be brought to light in the civil Court, viz., that it was a case of victimiza tion 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 conductive 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 require ment of a reasonable opportunity to the public servant concerned to shoe, cause against his discharge. To hold otherwise would be to render the constitutional protection "super fluous, useless and delusive," to use the epithets applied by the Judicial Committee in the well‑known case of Gould v. Sruart (1896) A C 575, where certain statutory protections assured to public servants were sought to be overborne by invoking the "pleasure of the Crown"."

It appears from the above, that the constitutional provision will, in all circumstances, prevail against any expression and against any implication from omission appearing in the relevant rules and that the proviso to rule 1708 does not assert a plenary right in the General Manager to exercise the power of removal by notice. The right of the General Manager being subject to limitations, he is to exercise the same in-exceptional circumstances only. The Chief Justice also held that discharge by notice under the service agreement was not excluded from the meaning of the expression "removal" and that show‑cause notice was also necessary in the less violent form of removal, namely, discharge b notice. Fazle‑Akbar, J., was of the view that the provisions of subsection (3) of section 240 could not be evaded by saying that the action taken under the notice clause of the service agreement was not a punishment. According to Kaikaus, J., "every termina tion of service was a punishment for the employee because it inflicted harm on him. The servant places a value upon his employ ment and if he is deprived of it, he stands punished. 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."

The sum and substance of the views is clearly that the dis tinctions as sought to be made between termination by notice and removal', are only too artificial; that separation from service by whatever name called, must be according to the well‑established principles of Constitutional law, and there can be no getting over the Constitutional law of the land on the basis of artificial distinctions between removal, dismissal and termination by notice and discharge. Having regard to the circumstances and in the light of the decision as quoted at length, there does not seem to be any substance in the present appeal.

Before concluding it is necessary to refer to the cross- objection filed by the respondent, the ground being "for that the Courts below erred in law in refusing to declare that the plaintiff was to be deemed in the eye of law to be in the service of the defendant."

As indicated before, the trial Court did not grant the declara tion on the ground that by the time the decision was delivered, the respondent had passed his age of 55 years and the Court only declared that the order of removal of the plaintiff from service from 16‑12‑53, was illegal, ultra vires and without jurisdiction.

Mr. Bose has pressed for the declaration that the respondent was in service on the date of the institution of the suit and till the age of superannuation.

It appears that the Supreme Court in the decision cited had no hesitation in giving such a declaration, Hamoodur Rahman, J., having really held that the appellant continued to be in the service of Railway Administration till the age he would have attained superannuation.

I, therefore, also allow the cross‑objection of the respondent and declare that the respondent continued to hold his post in the Railway after the date of termination and in despite thereof.

The appeal is dismissed with costs. Leave under clause 15 of the Letters Patent, as prayed for, is granted.

K. B. A. Appeal dismissed.

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