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Second appeal No. 76 (W) of 1947, decided on 16th October, 1950, from the decree of 1st Additional District Judge, Rawalpindi, dated 4th June, 1947, affirming that of the Senior Subordinate Judge, Rawalpindi, dated 9th July, 1946.
(a) Punjab District Boards Act (XX of 1883), S. 26‑Rules of business‑Chairman competent to suspend servants drawing salary not exceeding Rs. 100‑Punjab General Clauses Act (I of 1898), S. 14.
The Chairman, District Board, Rawalpindi, is competent to pass an order suspending from service a servant drawing salary not exceeding Rs. 100 p. m.
It is, no doubt, true that by the rules the Chairman had not been authorized to pass an order suspending an employee of the status of the appellant from service, but that power was sub sequently conferred on the Chairman as is clear from letter No. 1140‑L. G.‑40/14268, dated the 21st of March 1940 from the Deputy Secretary to Government Punjab, Medical and Local Government Departments to the address of the Commissioner, Rawalpindi Division. The letter shows that the Governor of the Punjab had accorded sanction to the delegation by the respondent District Board to its Chairman of the powers to suspend and transfer District Board servants drawing salary not exceeding Rs. 100 per mensem.
It is clear from the language of section 14, Punjab General Clauses Act (I of 1898) that in the absence of any other provision of law or rule being applicable the appointing authority has the power to suspend an employee from service, but nowhere has it been mentioned in the section that the power to pass an order of suspension cannot be delegated.
(b) Punjab District Boards Act (XX of 1883), S. 26‑Rules of business‑Rule 8.1‑‑-Servant not given opportunity to show cause against dismissal‑Civil suit, nevertheless, trot com petent‑Government of India Act, 1935, S. 240.
There is no provision in any enactment which grants to the employees of District Boards in the Punjab safeguards granted to civil servants by section 240 of the Government of India Act, 1935, and a dismissed servant can at best rely on the rules. Non‑compliance with rules, however, does not give an employee a right to lodge a suit.
R. Venkata Rao v. Secretary, of State for India in Council, I. L. 8.,1937 Mad. 532 rel.
The decision of their Lordships of the Privy Council in I. M. Lall's case (A I R 1948 P. C. 121) is based on an interpretation of section 240 of the Government of India Act, 1935, which section is applicable to persons in the civil services of the Crown or holding civil posts under the Crown and the terms of that section can have no application to an employee of a District Board.
High Commissioner for India and another v. I. M. Lall, A. I. R. 1948 P. C. 121.
(c) Punjab District Board Rules, 1926, rr. 1 and 2‑Apply only to dismissals from substantive appointments.
(d) Punjab District Boards Act (XX of 1883), Rule 8.1 of Rules of business‑Whether Civil Court could pass a decree for subsistence grant to a suspended servant‑Rule 7.2 Civil Services Rules (Punjab), Vol. 1, Part I.
Rule 7.2 of Civil Services Rules (Punjab), Volume I, Part I, makes it clear that 1/4th of salary is the maximum that can be allowed as subsistence grant and that the grant may be fixed at a lower rate in the discretion of the suspending authority. The rate of subsistence grant not being fixed by the relevant rules only the suspending authority can fix the rate of the subsistence grant and a Court of law cannot do so and, therefore, no decree for the amount of the subsistence grant can be passed.
The suspended employee, however, could be granted a declaration to the effect that he is entitled to subsistence grant for a period for which such grant had not been allowed to him, leaving the amount to be fixed by the Chairman of the Board.
High Commissioner for India and another v. I. M. Lall, A. I. R. 1948 P, C. 1421, not applicable. '
Sh. Abdul Karim for Appellant.
Dr. Tasadduque Hussain for Respondent.
Mir Allah Bakhsh appellant was working as an overseer in the service of the Municipal Committee, Murree, when by a resolution passed by the District Board, Rawalpindi, (the respondent), on 11th of July 1936, he was taken temporarily in their service: On 21st of February 1937, the District Engineer wrote a note that as the, appellant could not be appointed permanent ly as an overseer under the respondent because he was not possess ed of the requisite qualifications he should go back to his original post in the Municipal Committee, Murree. It appears that the appellant did not go to the Municipal Committee, Murree, in spite of the fact that by their resolution dated 23rd of October 1937, he was allowed to revert to his, original post. The appellant applied to the respondent that he may be retained by the respondent and not sent to his original post and on the 25th of February 1938, the respondent passed a resolution that the appellant be retained in service till 3 1st of March 1938 and in the meantime by their resolution dated 1st of February 1938, the Municipal Committee, Murree, had sanctioned to the appellant leave without pay till 31st of March 1938. After 31st of March 1938, the appellant continued to work as temporary overseer under the respondent and it was about three years later on 6th of March 1941 that the question of his retention again came up for consideration before the respondent District Board. On 6th of March 1941, the respondent passed a resolution that the appellant was to continue in the service of the respondent till 5th of March 1942., At the time when the appellant was first employed the rules of business passed by the respondent under section 26 of the District Boards Act, had been published in Part 1‑A of the Punjab Gazette as Notification No. 11881, dated 10th of April 1934. These rules fixed the minimum qualification for persons who could be appointed Overseers by the respondent and as the appellant did not possess that qualification he had been working on a temporary basis only. After the respondent passed its resolution on the 6tb of March 1941 for retaining the services of the appellant for another year it was proposed that a request be made to Punjab Government to accord' sanction to the employment of the appellant on a permanent basis, but before any‑, thing could be done for that purpose the conduct of the appellant became the subject‑matter of an enquiry on criminal charges of misappropriation and breach of trust, with the result that he was suspended from service on 3rd of May 1941 by the order of the Deputy Commissioner, Rawalpindi, who was the Chairman of the respondent District Board. The order suspending the appellant from service directed him to attend the office of the respondent every day and not to leave the station without obtaining previous written permission from the Chairman of the respondent. The appellant was further ordered to hand over charge to one Muhammad Din and submit the charge report to the respondent without any delay.
On 20th of February 1942, the appellant put in an application for the grant of subsistence allowance during the period of his suspension and the Chairman of the respondent by an order dated 1st of April 1942 allowed the allowance at the rate of one‑fourth of the salary to the appellant. No departmental inquiry appears to have been held into the conduct of the appellant, but he was tried by a Magistrate for offences of criminal breach of trust, etc. and convicted on 30th of April 1943. The appeal lodged by him in the Court of the Sessions Judge, Rawalpindi, having failed, the appellant put in a revision petition in this Court, which being accepted on the 2nd of November 1943, he was acquitted. After his acquittal, the appellant applied to the respondent on the 23rd of November 1943, that, he may be permitted to join duty and on this application the Senior Vice‑President of the respondent Board made a‑recommend ation to the Chairman, but the Chairman on 6th of December 1943 wrote a note on the application that the appellant had been employ ed on a temporary basis and if he had not already been discharged from service he should be discharged at once with effect from the date of his conviction. In compliance with the wishes of its Chair man the respondent passed a resolution on 31st of January 1944 that the appellant was discharged from service with effect from 30th of April 1943, that is, from the day that he was convicted of criminal offences by the Magistrate who tried him.
Feeling aggrieved by the order of the respondent by which he was removed from service, the appellant preferred an appeal to the Commissioner, Rawalpindi Division. The Commissioner accepted the appeal on 16th of January 1945 and ordered that the appellant be reinstated from the date of the decision of the appeal and added that from the date of discharge under the resolution of the respon dent to the date of his order, the appellant was to be considered to have been on leave on half average pay for the period for which he was entitled to that leave and to have been on leave without pay for the rest of the period., In pursuance of the order of the Com missioner the appellant resumed duty on 6th of February 1945, but tendered his resignation on 21st of February 1945. His resignation having been accepted, he left the employment of the respondent on 28th of February 1945, and on 11th of October 1945, instituted a suit against the respondent for the recovery of Rs. 2,500 as damages on the ground that he had been' wrongfully and illegally suspended and discharged from' service. The claim of the appellant was as follows:‑----
| (1) Salary at the rate of Rs. 60 per mensem from 6th May 1941 to 28th February 1945. | Rs. 2, 748/6/‑ |
| (2) Allowance at the rate of Rs. 12 per mensem from 1st April 1942 (date of commencement of the allowance) to 31st March 1944. | Rs. 288/‑/‑ |
| (3) Allowance at the rate of R s. 14 per mensem from 1st April 1944, to 28th February 1945 . | Rs. 154/‑/‑ |
| (4) Refund of security with interest at 3 per cent. for 8 years. | Rs. 124/‑/‑ |
| | |
Out of Rs. 3,314/6/‑, Rs. 813/10/‑, which. was received as subsistence allowance, etc., was deducted and another annas twelve was also deducted leaving the figure of Rs. 2,500. The claim was based on the assertion that the order of the Chairman of the res pondent suspending the appellant from service was without jurisdic tion, that the resolution dated 31st January 1944 passed by the defendant‑respondent dismissing the appellant from service from 30th of April 1943 was not only illegal, but unjust, arbitrary and capricious, especially because it was to have retrospective effect, and the order passed by the Commissioner on 16th January 1945 was illegal, ultra vices, self‑contradictory and perverse inns much as while, reinstating the appellant he did not order that the reinstatement was to be from 3rd of May 1941, the date of the plaintiffs suspension from service under orders of the Chairman of the respondent, but from the date of the order passed in appeal.
It was added, that the order of the Commissioner was, also illegal because instead of allowing the appellant full allowances from. 5th of March 1942 he allowed him only leave allowances.
In their written statement the defendant‑respondent pleaded inter alia, that the appellant was employed temporarily from 6th of March 1941 and his services, therefore, came to an end Automati cally on 5th of March 1942, that the Chairman was fully competent to suspend the 'appellant from service and that suspension amounted in law to dismissal from service. It was further added that the only claim which was tenable was for a sum of Rs. 124 with respect to the security deposited by the appellant and interest thereon. On the pleadings of the parties, the trial Court framed the following five issues:‑
(1) Did the plaintiff's service come to an end on 6th March 1942, if so, with what effect
(2) Whether the suspension of the plaintiff on 3rd May 1948 amounted to his dismissal, if so, with what effect
(3) Whether the Chairman of the District Board had the power to suspend the plaintiff from the service
(4) To what amount, if any, is the plaintiff entitled
(5) Relief.
On 28th of May 1946, the defendant Board applied for amendment of the written statement, so that a plea that the Civil Courts had no jurisdiction to entertain the suit be added, and that application having been accepted after hearing the plaintiff‑appellant, the following was added as issue No. (6):‑---
"Whether the plaintiff has no locus standi to sue in the), civil Court "
The trial Court found issues Nos. (1) and (2) against the defendant and issue Nos. (3) and (6) in their favour and granted the plaintiff a decree for Rs. 166 comprised of Rs. 124, the security put in by the plaintiff‑appellant with interest thereon and Rs. 42 as leave allowance for one month as the appellant was to be treated on leave on half average pay under the orders of the Commissioner, dated 16th of January 1945. Against the decision of the trial Court, the plaintiff preferred an appeal which was dismissed on 4th of June 1947 by Mr. Abdul Majid, who was then Additional District Judge, Rawalpindi, and against that decision the plaintiff has put in this second appeal.
The first contention of the learned counsel for the appellant was that the order passed on 3rd of May 1941 by the Chair man of the respondent District Board suspending the appellant from service was ultra vices and illegal, because not being the appointing authority the Chairman could not pass the order suspending the appellant from service. Reliance for his contention was placed by the learned counsel on the rules of business made by the respondent District Board under section 26 of the Punjab District Board Act, 188'3 which are published in Part I‑A of the Punjab Gazette at pages 136 to 144 as Notification No. 11881, dated the 10th of April 1934. The learned counsel for the appellant pointed out that the rules mentioned above did not contain any provision authorizing the Chairman to pass an order suspending an employee of the District Board of the status of the appellant from service and urged that the Chair man acted without jurisdiction and, therefore, the order of suspension should be deemed never to have been passed against the appellant. It is, no doubt true, that by the rules mentioned above the Chairman had not been authorized to pass an order suspending an employee of the status of the appellant from service, but that power was subsequently conferred on the Chairman as is clear from letter No. 1140‑L.G.‑40/14268, dated the 21st of March 1940 from the Deputy Secretary to Government Punjab, Medical and Local Government Departments to the address of the Commissioner, Rawalpindi Division. The letter shows that the Governor of the Punjab had accorded sanction to the delegation by the respondent District Board to its Chairman of the powers specified in the schedule attached thereto. Item No 2 in the schedule appended to the letter reads as follows :‑---
"Nature of power delegated.‑ ------------------------------------------Extent.
Power to suspend and transfer District Board -------------------------- Full powers."
servants drawing salary not exceeding Rs.100 per mensem.
When the learned counsel for the appellant realised that the powers to suspend had been delegated to the Chairman of the respondent District Board and the order passed by that officer was valid according to the rules binding on the appellant, he contended that the delegation was not proper, as the Chairman not being an appointing authority the power to suspend could not be validly delegated to him. The learned counsel could not, however, point to any provision of law which prohibits the delegation of power to pass an order of suspension from service to an authority subordinate to the one which made the appointment, but appeared to be seeking support from section 14 of the Punjab General Clauses Act (Punjab Act I of 1898), which reads as follows :‑---
"14. Where, by any Punjab Act, a power to make any appointment is conferred, then, unless a different intention appears, the authority having power to make the appointment shall also have power to suspend or dismiss any person appointed by it in exercise of that power."
It is clear from the language of the 'section that in the absence of any other provision of law or rule being applicable, the appointing authority has the power to suspend an employee from service, but nowhere has it been mentioned in the section that the power to pass an order of suspension cannot be delegated. I hold, therefore, that the Chairman of the respondent District Board was competent to pass the order suspending the appellant from service.
The second contention of the learned counsel for the appellant was that his client not having been given an opportunity to show cause against the order of dismissal, the order was illegal and not binding. In this connection the learned counsel quoted rule 8.1 of the rules contained in Punjab Government Notification No. 11881, dated the 10th of April 1934, which have been referred to already, and made a passing reference to the decision of their Lordships of the Privy Council in the case reported as the High Commissioner for India and another v. I. M. Lall (A. I. R. 1948 P. C. 121). The rule relied upon by the learned counsel reads as follows:‑----
"8.1. In all matters relating to the conditions of service of its employees the Board shall so far as may be follow the rules from time to time in force for servants of the Punjab Government."
It is common ground between the parties that the appellant was not given an opportunity to show cause against his removal from the service of the respondent District Board and it is clear, therefore, that if the decision of the Privy Council in I. M. Lail's case is applicable, the appellant must succeed on the ground that he was not given an opportunity to show cause against the action proposed to be taken against him. The decision) of their Lordships of the Privy Council in I. M. Lail's case is based on an interpretation of section 240 of the Government of India Act, 1935, which section is applicable to persons in the civil services of the Crown or holding civil posts under the Crown and in my opinion, the terms of that section can have no application to the appellant, who was, an employee of a District Board. But assuming that rule 8.1 of the rules applicable to the respondent District Board means that the servants of the respondent were to have the same‑safeguards as the civil servants of the Crown mentioned in section 240 of the Government of India Act, 1935, I do not see how the appellant can ask a Court of law to grant him any relief in this matter. There is no provision in any enactment which grants to the employees of District Boards in the Punjab safeguards granted to civil servants mentioned therein by section 240 of the Government of India Act, 1935, and the appellant can at best rely on the, rules. It has been laid down by their Lordships of the Privy Council in a decision reported as R. Venkata Rao v. Secretary of State for India in Council (I. L. R. 1937 Mad. 5,33) that non‑compliance with the' rules does not give an employee a right to lodge a suit. I hold, therefore, that this contention of the learned counsel for the appel lant is also without force.
It was next contended by the learned counsel for the appellant that, as no inquiry was held into the conduct of his client, the order of dismissal offended against the rules appli cable to the servants of the respondent District Board. In this connection, learned counsel referred to rules 1 and 2 in Part V of the District Board Rules, 1926. The rules relied upon by the learned counsel for the appellant read as follows :‑
" 1. No officer or servant of a District Board shall be dismissed except after an inquiry as provided in rule 2 in this part ; provided that no such enquiry shall be necessary if the accused is absconding or if he is to be dismissed on facts or inferences based on the findings of a Court.
2. Procedure on dismissal.‑A definite charge shall be framed in writing for each offence alleged against the officer or servant sought to be dismissed, and such charge shall be explained to the accused and the evidence in support of it, and any evidence that the accused may adduce in his defence, shall be recorded in his presence and his defence taken down in writing and each such charge shall be dis cussed and a finding shall be recorded on it."
Apart from other things, the main objection to this argument is that it overlooks the definition of the expression "to dismiss", which is contained in the rules themselves. Rule 2 of the introductory part of these rules contain definitions and therein it is said that " to dismiss" means to remove permanently from a substantive appointment for misconduct or incompetence. In the present case, the appellant was not holding any sub stantive appointment and, therefore, he was not entitled to claim that rules 1 and 2 of Part V of the District Board Rules, 1926, be complied with before any action was taken against him.
The next contention of the learned counsel for the appellant was that the Commissioner, when accepting the appeal of the appellant, should have ordered his reinstatement from the date of his dismissal from service. The only provision, which gives a Commissioner the right to hear an appeal against an order of dismissal is contained in rule 3 of Part V of the District Board Rules, 1926, which runs as follows :‑---
" 3. Appeals.‑An officer or servant dismissed by less than two‑thirds majority of all the members of the Board, or by an authority to whom powers have been delegated by the Board under section 19‑A of the Act, from substan tive appointment carrying a salary of twenty‑one rupees per mensem or more, may, within thirty days from the date on which the order of dismissal is communicated to the dis missed employee, appeal to the Commissioner of the Division,**************** provided that the Commissioner may, if he thinks fit, extend in any particular case the period allowed by this rule for the presentation of appeals."
In the present case, the appellant was not holding a substantive appointment and, therefore, rule 3 has no application to his case. Moreover, as the appellant was dismissed by a unanimous vote of the respondent District Board, the Commissioner had no power to hear the appeal and, therefore, his order was ultra vires and without jurisdiction. The respondent District Board has not, however, challenged the order of the Com missioner and, therefore, it must be allowed to stand, but the appellant cannot claim that if there was any mistake in the order of the Commissioner passed without jurisdiction, it should be corrected by this Court. This contention of the learned counsel for the appellant must also be repelled.
The last, contention of the learned counsel for the appellant was that his client was entitled to subsistence allowance from the date when he was suspended from service under the orders of the Chairman of the respondent District Board and not from 1st April 1942 on, which date the order granting the subsistence allowance was passed by the Chairman. For this contention, the learned counsel relied on rule 7.6 occurring in Chapter VII of Civil Services Rules (Punjab) Volume I, Part I, the relevant portions of which run as follows :‑
" 7.2. A Government servant under suspension is entitled to the following payments :‑
(a)*******************************
(b) In the case of Government servants other than those mentioned in clause (a) above, to subsistence grant at such rates as the suspending authority may direct, but not exceeding one‑fourth of the pay of the suspended Government servant."
Rule 8.1 of the rules of business, the respondent District Board which has already been quoted will make the rules relating to subsistence grant to employees of the Punjab Government under suspension applicable to employees of the respondent District Board under suspension and the question for decision is whether the suspending authority was competent to order that the appel lant‑ get subsistence allowance from first of April 1942 and not 3rd of May 1941, the date of his suspension from service. One of the notes appended to rule 7.2 reads as follows:‑
" The suspending authority has discretion under clause (b) of this rule to fix the amount of subsistence grant at such figure as it may think fit, subject to the prescribed maximum, but it has not the authority to refuse a subsistence grant altogether."
I am of the view that the wording of the rule itself makes it clear that subsistence grant is payable from the date on which the order of suspension is to operate and if there were any doubts about that the note appended to the rule 'has set them entirely at rest. Moreover, it is but just and proper that an employee under suspension be allowed subsistence grant from the date on which he is placed under suspension, because as long as he i5 tinder suspension he, is deemed to be in service and remains subject to the orders of his superiors. As mentioned already, the order placing the appellant under sus pension on 3rd of May 1941 directed him to attend office every day and not to leave the station without obtaining pre vious written permission from the Chairman of the respondent, and I hold that the appellant was entitled to subsistence grant from the date when he was placed under suspension.
The question that now arises is whether or not a Court of law can grant a decree to the appellant for the subsistence grant from 3rd of May 1941 to the 31st of March 1942. The learned counsel for the respondent contended that the decision of their Lordships of the Privy Counsil in " The High Commissioner for India and another v. I. M. Lall (A. I. R. 1948 Privy Council 121)" was applicable and therefore no decree for payment of subsistence grant could be passed by a Court of law and the remedy of the appellant lay by a petition to the Chairman of the respondent District Board, or to the respon dent District Board or the Commissioner of the Division. I am of the view that the decision of their Lordships of the Privy Council with regard to the non‑maintainability of a suit for arrears of pay has no application to the present case, because their Lordships laid down only that as an action in torts does not lie against the Crown any right of action against the Crown must either be based on contract or conferred by statute. Their Lordships referred to the judgment of Lord Blackburn in 1926 S. C. 842 (Mulvenna v. The Admirality) and at page 127 of A. I. R. 1948 P. C. 121 are reported to have remarked as
" In the present case there is no obligation as I to pay in the respondent's covenant, as already mentioned: The respon dent sought to establish a statutory right to recover arrears of pay by action in the Civil Court; he made reference to certain sections of the Government of India Act, 1935, viz., sections 179 (9), 247 (4), 249 and 250, but it is enough to state that their Lordships are unable to derive from them any statutory right to recover arrears of pay by action. He also referred to section 32, Government of India Act of 1919, which, by subsection (2), provides the same remedies against the Secretary of State in Council as might have been had against the East India Company if the Government of India .Act, 1858, and the Act of 1919 had not been passed, but it has been settled ever since (1n38) 5 Bing. N. C. 252, that pay could not be recovered by action against the Company, but only by petition, memorial or remonstrance. It follows that the respondent fails in his claim to arrears of pay.
There is, however, another aspect of the matter. Rule 7.2 of Civil Services Rules (Punjab), Volume I, Part I, makes it clear that 14th of salary is maximum that can be allowed as subsistence grant and that the grant may be fixed at a lower rate in the discretion of the suspending authority. The rate of subsistence grant not being fixed by the relevant rules, I am of the opinion that only the suspending authority can fix the rate of the subsistence grant and a Court of law cannot do so and, therefore, no decree for the amount of the subsist ence grant can be passed. As the appellant was entitled to subsistence grant from 3rd of May 1941 to 31st of March 1942 and that grant was not allowed to him, I would grant him a declaration to the effect that he is entitled to subsistence grant from 3rd May 1941 to 31st March 1942 leaving the amount to be fixed by the Chairman of the respondent District Board.
The result, therefore, is that I would accept the appeal only to the extent of granting the appellant a declaration that he was entitled to subsistence grant from 3rd of May 1941 to 31st of March 1942, but would dismiss the appeal in all other respects, and would, in view of all the circumstances of the case, leave the parties to bear their own costs.
I agree.
A. H. Appeal dismissed.
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