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Appeal from Appellate Decree No. 289 of 1962, decided on 26th May 1965.
S. 79 read with Con stitution of Pakistan (1956), Art. 136 and Laws (Continuance in Force) Order (I of 1958)‑Provisions merely procedural‑Expres sion "shall be" in S. 79, C. P. C. not mandatory‑Suit against Government‑Describing defendant‑Government as "the Govern ment of Pakistan" instead of merely "Pakistan"‑Not of great consequence.
, Ss. 79 & 80‑Govern ment servant‑Suit against Government‑Relief claimed in notice that of "re‑instatement" but prayer in plaint for "declaration that plaintiff continued to be in service"‑Circumstance no ground for dismissing suit.
, S. 80‑Notice addressed to "Secretary to Government" instead of "Pakistan"‑Not invalid.
Art. 181 and Government of India Act, 1935, S. 240 (3)‑Government servant‑Termination of services‑Government servant, whether permanent or temporary, entitled to opportunity of showing cause against proposed action -Constitution of Pakistan (1962), Art. 177.
Golam Sarwar v; Pakistan P L D 1962 S C 142 fol.
Md. Jani Alam, Assistant Government Pleader for Appellant.
Ruhul Islam and Mukhtar Hussain for Respondent.
‑This Second Appeal has been preferred by the Central Government against the judgment and decree passed in appeal by a Subordinate Judge of Chittagong.
The Government was the defendant in a suit brought by the plaintiff ‑respondent for declaration that the termination of plaintiff's services under the defendant was illegal and the plain tiff had been in the eye of law continuing in his service.
The plaintiff's case was that he was appointed on 2nd July 1943 by the Government of India as Deputy Assistant Controller of Purchase in the Ministry of Industries and Supplies, New- Delhi. His services, were placed under the Director of Civil Supplies, Delhi and he continued there till partition. He bad exercised his option for Pakistan and pending the final and formal acceptance of the said option he continued in his post under the Delhi Administration till 8‑9‑47 when due to communal riots he was forced to leave for Pakistan. When in Pakistan he wrote a series of letters to the defendant for his posting. On 22‑1‑49 he got a letter of appointment which was not a proper letter so far as the plaintiff was concerned as it ignored his previous services, yet without prejudice to his right the plaintiff accepted it formally and joined his duties on 22‑1‑49 at Karachi as Assistant Director, Class, I. In the new setting the plaintiff's name was at serial No. 52 in the cadre of Class I officers of the Department of Supply and Development as prepared by the Government Secretariat. The plaintiff, however, continued to write to the proper authorities for formal recognition of his status and position in consideration of his continuous service from 2‑7‑43, but the Department did not consider his case. He was temporarily promoted to the post of Assistant Chief Con troller of Imports and Exports and he served there during the period from 6‑1‑50 to 6‑2‑50 but the Public Service Commission did not confirm his promotion. As the plaintiff's grievance were not redressed he was constrained to file O. S. 149 of 1956 against the defendant. The defendant by a letter dated 13‑5‑57 terminated the plaintiff's service with effect from 30‑5‑57 without any notice to show cause why his service should not be terminated and during the pendency of the said suit filed by the plaintiff. On receipt of the letter the plaintiff had his plaint in other Suit No. 149 of 1956 amended but under a bona fide mistake he did not serve a fresh notice under section 80 of the Code of Civil Procedure upon the defendant. Although the Court found in favour of the plaintiff on other points, the suit was dismissed on the formal ground that no notice under sec tion 80 of the Code of Civil Procedure was served upon the defendant before the aforesaid amendment of the plaint. There after, the plaintiff filed a fresh suit after due service of notice under section b0 of the Code of Civil Procedure alleging that the cause of action of the suit arose at Agrabad, Chittagong on 15‑5‑57 when the plaintiff received the alleged letter of termina tion of his services. .
The Government contended that the plaintiff's services in India were terminated as there was retrenchment in the Civil Supplies Department and the plaintiff left his service under the defendant having received his gratuity and he was appointed under the Chief Commissioner, Delhi Provincial Administration. It was, therefore, contended that there was no occasion for option and the plaintiff's story of option for Pakistan was not true. It was next contended that the plaintiff was appointed temporarily on 22‑1‑49 as Assistant Director and when he accepted the terms and conditions of the alleged letter of appointment, his service is liable to be terminated at any time without notice. The Public Service Commission, it is alleged, found clearly that he was not fit even for Class II service and, as a result, a notice of termination of plaintiff's service was issued, but, before that letter could be served, the plaintiff was retained in the Industries and Development Department. In addition to these grounds, the defendant also contended that the notice under section 80 of the Code of Civil Procedure was rot a legal and valid notice and the defendant had not been properly described in the plaint and lastly that the suit was not maintainable as the, decree, even if it was passed was not executable and enforceable.
As many as nine (9) issues were framed by the trial Court which are set forth below:
"(1) Is the suit maintainable in its present form
(2) Has the defendant been properly described in the suit
(3) Is the plaintiff an optee from India to Pakistan
(4) Is the plaintiff a temporary Government servant in terms of his appointment letter dated 22‑1‑49 or has he carved the status of a permanent Government servant
(5) Is the termination of Plaintiff's service illegal and with out jurisdiction
(6) Has the plaintiff any right under section 240 of the Government of India Act or under the provisions of any other law in force
(7) Has the alleged notice under section 80, C. P. C. been properly and duly served
(8) Is the suit barred by limitation
(9) What relief, if any, is the plaintiff entitled to "
The learned Munsif found that the description of the defendant as "the Government of Pakistan" was a mis-descrip tion and the addressee of the notice under section 80 of the Code of Civil Procedure, Exh. 2, namely "The Secretary to the Government of Pakistan, Ministry of Industries, Karachi" was also a mis-description and was in violation of sections 79 and 80 of the Code of Civil Procedure.
The learned Munsif also found that the plaintiff was not an optee on the ground that the order (Exh. 12 (4)/Exh. 7) purporting to transfer the services of the plaintiff was defective, inasmuch as the plaintiff's services were retrenched and he accepted the gratuity and accepted an appointment under the Chief Commissioner, Delhi on a lower scale. Therefore, the learned Munsif has held, so far as the Government of Pakistan is concerned that the plaintiff had no claim against it and there was no question of continuity of his services under the defendant. It was also found by the learned Munsif that the plaintiff was a temporary Government servant in terms of the letter dated 22‑1‑49 but he earned the status of a permanent Government servant class I in the Department of Supply and Development under the Ministry of Industries, Government of Pakistan". The learned Munsif, however, found that the termination of plaintiff's service was illegal and ultra vires and was not binding upon the plaintiff. He also held that the suit was maintainable being not barred by the provision of section 42 of the Specific Relief Act.
However, in view of his finding that in the notice under section 80 of the Code of Civil Procedure and in the suit the des cription of the defendant was incorrect, he dismissed the suit. The plaintiff preferred an appeal and the learned Subordinate Judge found that the plaintiff was an optee and entitled to the benefit of his services from the date of his appointment under the Central Government. He held that the mis-description of the defendant was only a technical error and as such the plaintiff's suit had been wrongly dismissed and he decreed the suit in favour of the plaintiff giving him the declaration prayed for.
The Government has preferred this Second Appeal and Mr. Jani Alam appearing on behalf of the Government has merely reiterated the objections raised in the Courts below.
So far as the question of description of the defendant as, "the Government of Pakistan" instead of simply as "Pakistan" is concerned, the provisions of section 79 of the Code of Civil Procedure are to be considered along with Article 136 of the Constitution of 1956, which will be applicable to the circum stances of this case, subject to the provisions of the Laws (Continuance in Force)‑Order, 1958 as the present suit has been instituted on 22‑7‑59. Both the provisions of the Laws (Continuance in Force) Order and Article 136 of the Con stitution of 1956 seem to indicate that the Central Government may sue and be sued by the name of Pakistan. But Article 213 of the Constitution of 1956, which protects the President and the Governor from being sued for exercise of powers and performance of duties of their offices, makes a proviso to the following effect:
"Provided that nothing in this Article shall be construed as restricting the right of any person to bring appropriate pro ceedings against the Federal Government or a Provincial Government."
The suit is primarily against the Government. For convenience, it has been laid down that the Government would be named in the suit merely as "Pakistan". Describing the defendant as "the Government of Pakistan" rather clarifies the position. The con stitutional provisions in Article 136 of the Constitution of 1956 and section 79 of the Code of Civil Procedure are merely pro cedural. Therefore, in our opinion, the description of the defendant as "the Government of Pakistan" is not of a great consequence. The phrase "shall be" in section 79 of the Code of Civil Procedure is not mandatory.
Another ground on which the plaintiff's suit was dismissed by the learned Munsif was that the relief claimed in the notice under section 80 of the Code of Civil Procedure was for reinstatement, but in the plaint the prayer was only for declaration that the plaintiff continued to be in service. We fail to understand how this can be held to be a reason for dismissing the plaintiff's suit. One of the purposes of a notice under section 80 of the Code of Civil Procedure is to apprise the Government of the claim against it, so that the Government may not be taken by surprise in the proposed suit. The notice in this case had demanded more than that was claimed in the suit. Therefore, the Government cannot make any grievance on this score. The plaintiff has rightly confined his suit only to a declaration, as it has been held in a series of cases that Courts cannot compel the Government to reinstate an illegally dismissed servant. All that the Court can do is to declare that the dismissal was illegal and the executive is expected to respect the Court's finding and give effect to it.
One more factor remains to be considered, namely, that the learned Munsif also found that the notice was incompetent in asmuch as it was addressed to the Secretary of the relevant Department. In this connection, the wording of section 80 of the Code of Civil Procedure is clear. The relevant portion of section 80 reads as follows:
"A suit may be instituted against Government . . . after the expiration of two months next after notice in writing has been delivered to or left at the office, of,‑
"(a) in the case of a suit against the Central Government, a Secretary to that Government."
The wordings of section 80 of the Code of Civil Procedure, there fore, require that the notice should be given to the Secretary of the Government. Of course, the notice is to the State and the State has to be described as stated in section 79 of the Code of Civil Procedure by the name of "Pakistan". But, as the notice has to be delivered to the Secretary concerned, in our opinion, the objection is merely technical. The matter has to be dealt with by the Secretary concerned and mere omission to address the notice to "Pakistan", when it has admittedly been addressed to the Secretary, who is competent to deal with the matter, will not invalidate the notice itself.
The learned Munsif decided the issue No. 3 also against the plaintiff and found that the plaintiff was not an optee and was only appointed on a temporary basis. But the plaintiff has given clear evidence on oath to this effect and he has taken all steps to have the papers regarding this matter brought from the Delhi Administration through the Pakistan High Commis sioner and through the Central Government. The Government has not given any evidence that the said papers were not in existence, nor have they stated that they have taken steps to secure these papers. In this state of affairs, the learned Sub ordinate Judge has rightly held that the learned Munsif had acted illegally in holding that the plaintiff had failed to prove that he was an optee and that he was entitled to the benefit of a continuous service from the date of his appointment and that his tenure of service was permanent.
Another factor to be considered in this connection is that after the filing of this suit, the President, pursuant to a representation in that behalf, allowed the plaintiff to ' cross the Efficiency Bar. This crossing of the Efficiency Bar indicates that he was in permanent service. Be that as it may, so far as the termination of the service of the plaintiff is concerned, it is an admitted fact that he was not given any opportunity to show cause against the order terminating his service. The Government has rest contented with the assertion that he was a temporary servant and the termination of his service without any reason or cause was an incident of his appointment and as such he could make no grievance that he was not given an opportunity of show ing cause against the order of termination of his service. But, as we have stated above, it has been rightly held by the learned Subordinate Judge that the plaintiff had proved that the tenure of his service was permanent. Even if it is ‑held for argument's sake only that he had not been able to prove so, we hold follow ing the decision in the case of Golam Sarwar v. Pakistan (PLD1962SC142) that the plaintiff was nevertheless entitled to an opportunity of showing cause against the termination of his service both under section 240, subsection (3), of the Government of India Act, 1935, as well as Article 181 of the Constitution of 1956.
In the circumstances, we hold that there is no substance in this appeal and the learned subordinate Judge has rightly decreed the suit.
Our attention, however, has been drawn to the order passed by the learned Subordinate Judge to the effect that the plaintiff be considered still in service as Assistant Director, Class 1, in the Department of Supply and Development under the Ministry of Industries in the eye of law. The learned Subordinate Judge meant that the plaintiff remained an Assistant Director, Class I, in the Department of Supply and Development under the Ministry of Industries, Government of Pakistan. We, therefore, modify the relevant portion of the order accordingly.
With this modification the appeal is dismissed without any order as to costs.
.‑I agree.
S. Q. Appeal dismissed.
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