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Civil Revision Application No. 218 of 1962, decided on 6th April 1966.
Ss. 15 & 17‑Authority appointed under Ss. 15 & 17‑‑Court subordinate to High Court-- Revision under S. 115, C. P. C. against order of such authority, competent‑Civil Procedure Code (V of 1908), S. 115.
Abdur Rashid v. Abdur Rahim P L D 1959 Lah. 806 ref.
Common law principle that employees of Crown have no right to demand and recover compensation from employer‑Development of, in England, its colonies and in United States‑Principle of quantum meruit‑Provisions of S. 60, C. P. C.‑Inconsistent with principle of bounty of Crown‑Common law‑No longer reservoir of Pakistan law ‑ Bounty or prerogative of Crown‑Foreign to concept of Pakistan‑Law laid down in I. M. Lai's case P L D 1948 P C 150‑No longer good law in Pakistan‑Judgments in States of Pakistan v. Mehrajuddin P L D 1959 S C 147 and Government of West Pakistan v. Fazal‑e‑Huq Musarrat P L D 1960 S C 208 Held : correctly reflect only out moded law (after promulgation of Constitution of Pakistan (1962).
Where it was contended that a Government servant cannot sue the State for the recovery of his salary because the payment of salary to Government servants is, the bounty, and not an obligation, of the state, the High Court after examining the origin of the common law principle that the employees of the Crown have no right to demand and recover compensation from the employer and after making comparison in the develop ment of this common law principle in England, in its colonies and in the United States.
Held : the pronouncements in the case of the State of Pakistan v. Mehrajuddin (P L D 1959 S C 147) and in the Govern ment of West Pakistan v. Fazal‑e‑Haq Musarrat (P L D 1960 S C 208) now, after the promulgation of the Constitution of Pakistan, 1962, reflect outmoded law. After those pronouncements a few significant changes have taken place in the political structure and constitutional continuity of this country. One important change is the revolution which took place on the 7th October 1958 bringing in its wake the Martial Law regime which ended with the proclamation and enforcement of the present Constitution in 1962. The revolution marks a complete break in the continuity of the association of the British Crown with Pakistan. It demar cates the establishment of a new alliance with the United Kingdom without any allegiance to the British Crown. Common Law is no longer the reservoir of our law and Article 130 of the present Constitution completes its disconnection as a source of law. It enjoins an important change in the administration of law, as follows
"No Court shall have any jurisdiction that is not conferred on it by this Constitution or by or under the law."
The principle of the bounty of the State or prerogative of the Crown is now foreign to the concept of the Islamic Republic of Pakistan the Sovereignty of Pakistan does not belong to him. Therefore, I. M. Lal's case P L D 1948 P C 150 in so far as it seeks to enforce the Scottish or Common Law principle of the bounty or prerogative of the Crown, is no longer good law in Pakistan.
Commissioners v. Hambrook (1956) 2 Q B 641; American Jurisprudence, Volume 43 at page 134; 1. M. Lall's case P L D 1948 P C 150; Terrel v. Secretary of State for the Colonies (1953) 2 Q B 482; Reilly v. The King (1934) 1 A C 176; Shenton v. Smith 1895 A C 229; Sutton v. Attorney‑General (1923) 39 T L R 294; Administrative Law (1961) at page 237; Bihar v. Abdul Majid A I R 1954 S C 245; Tara Chand Pandit's case A I R 1947 F C 23 ; D. F. Mulla on C. P. C., (12 Edn.). ; Lucas and Lucas (1943) 2 All E R 110 ;State of Pakistan v. Mehrajuddin P L D 1959 S C 147 and Government of West Pakistan v. Fazal‑e‑Haq Musarrat P L D 1960 S C 208 ref.
Dismissal‑Declaratory decree ob tained by employee against State‑Attitude of Government Officers and Departments in not respecting and honouring decree of Court Strong contrast with conditions prevailing in England and makes pleas founded on common law and on immunities of Crown, unreal and far fetched in Pakistan.
G. P. Wilson in Cases and Materials on Constitutional and Administrative Law; Venkata Rao's case A I R 1937 P C 31 and Paki tan v. Naseem Ahmad P L D 1961 S C 445 ref.
Ss. 2(vi) & 15--- Word "wages"‑Does not necessarily mean "earned wages" Dismissal of employee from service held illegal by Court‑‑Railway Administration not electing to make any order in mode prescribed under rule 2044 of Pakistan Railway Establishment Code, Vol. II, nor such rule even applicable‑Employee, in circumstances of case, entitled to full wage for entire period of suspension‑Pakistan Railway Establishment Code, Vol. II, Rr. 2044 & 2126.
Muhammad Swaleh v. United Grain and Fodder Agencies P L D 1964 S C 97; Ghulam Mustafa Shah v. Pakistan P L D 1963 S C 268 ; Divisional Superintendent, N. W. R. v. Nand Lal Dubey A I R 1963‑ All. 123; Risal Singh v. Union of India A I R 1958 Ph. 155 and Sardar Ali v. Pakistan P L D 1961 Lah. 664 ref.
Art. 130‑Common law No longer reservoir of Pakistan law.
r. 2126 --Rule not meant to be used for sending employees on compulsory leave merely with object of not paying their wages.
S. 114, illus. (e)‑Presumption that official acts done regularly‑Presumption applies to regularity of act admitted or proved to have been done and not as substituted for proof of that act itself.
Z. A. Suhrawardy for Applicant.
Ibrahim Memon for Respondent.
Abdul Qadir Sheikh, Additional Advocate‑General, in response to a notice from this Court.
Dates of hearing : 1st October 1964, 7th and ,19th January 1965.
The General Manager, North‑Western Railway (now the Pakistan Western Railway) has questioned the judgment of the District Judge, Sukkur, dated the 27th of January 1962 by which the .learned District Judge has accepted the appeal of the respondent under section 17 of the Payment of Wages Act, 1936 against the order of a First Class Sub‑Judge and Authority under the Payment of Wages Act, 1936 dated the 26th of March, 1960, and directed the payment of full salary and allowances to the respondent.
2. The facts which form the background of this case are that the respondent was serving the North Western Railway as a cleaner and was posted at Rohri. On the 18th of July 1957, he was given a charge‑sheet to which he submitted .his reply denying the charges. On the 26th of September 1957, he received intimation that he had been removed from service: He filed a Civil suit bearing No. 26/1 of 1958 for declaration that the order by which he had been removed was of no effect and that he continued to be in service. According to him, he was entitled to all the rights and privileges .of his post. This suit was contested by the Railway, but was decreed on the 10th of November 1958 by a Civil Judge III Class, Lahore, as follows:--
"I decree the suit of. the plaintiff against the defendant for declaration that the order of the defendant dated the 26th of September 1957, by which the plaintiff was discharged from service is illegal, inoperative and notwithstanding the same the plaintiff continued in service and entitled to the benefits and privileges of the posts."
3. In consequence of the above decision the respondent was posted again on the 17th of January 1959, but was not paid his salary for the period commencing from the date of his suspension, that is to say, the 29th of May 1957, till the 17th of January 1959. The reason was that this entire period was treated by the Railway Administration under Rule 2126 (F. R. 85) as spent on leave without pay. The respondent pressed his claim by making an application under subsection (2) of section 15 of the Payment of Wages Act, 1936, and alleging in it that deduction from his wages had been made contrary to the provisions of the Act. The subsection is as follows:--
"(2) Where contrary to the provisions of this Act any deduc tion has been made from the wages of an employed person, or any payment of wages has been delayed, such person himself, or any legal practitioner or any official of a registered Trade Union authorised in writing to act on his behalf, or any Inspector under this Act, or any other person acting with the permission of the authority appointed under subsection (1), may apply to such authority for a direction under sub section (3):
Provided that every such application shall be presented within six months from the date on which the deduction from the wages was made or from the date on which the payment of the wages was due to be made, as the case may be:
Provided further that any application may be admitted after the said period of six months when the applicant satisfies the authority that he had sufficient cause for not making the appli cation within such period."
The application was heard by a First Class Sub‑Judge and Autho rity under the Payment of Wages Act, 1936, Sukkur who decided it, as mentioned above, on the 26th of March 1960. The decision was as follows:
"He (the present respondent) is, therefore, entitled to wages at the rate admissible under such cases. The Opponent (the present applicant) is to prescribe this rate as provided by Rule 2044 (F. R. 54) of the 9itate Railway Establishment Code and to pay to the applicant accordingly. The applicant's prayer for compensation in addition to the wages, however, cannot be granted as he has not shown as to how he is entitled to such compensation."
In pursuance of the above order the Railway Administration held that 1/10th of the salary of the respondent could be granted to him in terms of Rule 2044.
4. The respondent was not satisfied. Therefore, he made another application under the Payment of Wages Act, 1936 alleging that he was unable to recover his wages in spite of repeated demands and that, therefore the Railway Administration be directed to make payment in Form F of the Payment of Wages (Pro cedure) Rules, 1937 as well as action be taken under subsection (5) of section 15 of the Payment of Wages Act, 1936. The application was dismissed on the 28th of January 1961, as follows:
"Since no directions were given to the defendants (the present applicant) to fix a particular rate of pay, and under Rule 2044 they are competent to fix any rate of pay, the applicant (the present respondent) is not entitled to the relief claimed. Appli cation dismissed."
The respondent went in appeal to the District Judge under section 17 of the Payment of Wages Act, 1936, which was accepted on the 27th of January 1962, as follows:
"I, therefore, allow this appeal, set aside the orders passed by the learned Authority F. C. Sub‑Judge under section 15 of the Payment of Wages Act and direct that the appellant (the present respondent) should be paid his full dues, pay and allowances, to which he was entitled for the period between 29th of May 1957 and the 17th of January 1959, which period be considered to be the period on duty. Orders accordingly."
5. The General Manager of the Railway has come in revision against the above order. Counsel for the applicant has advanced four arguments in support of this application:
Firstly, the learned District Judge while deciding an appeal which was preferred against the order dated the 21st of January 1961, has set aside the earlier order dated the 26th of March 1960, against which no appeal had been preferred;
Secondly, the order of the learned District Judge goes beyond the right and title of the respondent who cannot sue the State for the recovery of his salary because the payment of salary to Government servants is the bounty, and not an obligation, of the State;
Thirdly, the order of the District Judge is intended to in directly serve as execution of the declaratory decree that was given in Suit No. 26/1 of 1958; and
Fourthly, this revision application under section 115, C. P. C is maintainable because an authority appointed under sections 15 and 17 of the Payment of Wages Act, 1936 is, for purposes of section 115, C. P. C. a Court subordinate to the High A Court.
6. The fourth contention was supported by referring to the decision of A. R. Changez, J., in Abdul Rashid v. Abdur Rahim (P L D 1959 Lah. 806). It was not controverted on behalf of the respondent.
7. The second and third contentions emanate from the com mon law principle that the employees of the Crown have no right to demand and recover compensation from the employer. It is a legacy of the monarchical concept that the country and the people belonged to the King and were as such under an obliga tion to serve him. When the concept was a part of living thought in England, it manifested itself in a variety of ways. One instance of proprietory appropriation of territories by the British Crown is that Goa (India) was accepted by him as dowry, and an instance of treating his servants as chattels is that‑
"Where the King sent his servants to collect the toll, but they were set upon and beaten it was held that he (the King) had a general action of trespass for the. assault on his servants and for loss of their service."
(See page 661 of Inland Revenue Commissioner v. Hambrook, (1956) 2 Q B 641.)
The idea that servants could be so treated is closely tied up to feudal thought. It could not originate in a republican State.
8. The second contention directly raises issues of great importance and far reaching consequence.
It will not be out of place, therefore, if some comparison is attempted in the development of this common law prin ciple in England, in its Colonies' and in the United States of America for coming to a conclusion about the law of this country.
9. The most outstanding republican state of the 'present day world, which never had a monarchical government within its territories, is the United States of America, but from the beginning it borrowed the corpus juris of England. . Thus common Laws is the origin of its Laws too. The 43rd Volume of the American Jurisprudence accordingly contains the following observation on the payment of compensation to officers, at page 134:
"In considering constitutional and statutory provisions rela ting to the compensation of public officers, certain principles derived from the common law must be kept in mind. It is necessary to have in view the nature of a public office, and not to lose sight of the fact that an office is usually not regarded as a contract or as a vested property right, but rather as. a public trust to be exercised for the benefit of the public. It embraces the idea of tenure, duties and emoluments. But compensation is not indispensable to a public office it is not a part of the office but merely an incident thereto, and attaches to the office itself, and not to the officer, except as he is an officer de jure . . . The object in allowing compensation for official service is to enable public officials to give due attention to their official duties and to perform them better."
10. The above passage needs to be carefully noted because it visualises the background as well as the development of the relevant law in U. S. A. Some more developments which have taken place in that law can be noticed in the following passage which appears at page 136:
"When an office with a fixed salary has been created, and a person duly elected or appointed to it has qualified and enters upon the discharge of his duties, he is entitled, during his incumbency, to be paid the salary, fees or emoluments pres cribed by law. The public body cannot by any direct or indirect course of action deprive such incumbent of the right to receive the emoluments and perquisites which he attaches to the office, and effect will not be given to any attempt to deprive him of the right thereto, whether it is by unauthorised agree ment, by condition, or otherwise or by a wrongful removal or suspension. On the other hand, one not elected or appointed to a particular office may not be entitled to the salary attached to such office, notwithstanding he may have performed some of the duties annexed to it. As will be seen,' a de facto officer or a mere intruder cannot generally claim compensation for services rendered while occupying the office, and if compensation is in fact paid to him, he may have to account to the de jure officer for what he thus receives."
The above idea that the incumbent of an office has a right to receive the emoluments that are attached to it, though not as accruing to himself for performing duties, has further developed as set out at page 161:
"The right of a public officer to his fees, emoluments, or salary does not arise, by virtue of contract, express or implied, but, if it exists at all, exists as a creature of the law and an incident to the office which. he occupied. Such compensation as may be attached to the office, although not generally fixed on a quantum meruit basis, must necessarily be a reward for the performance of official duties."
The idea of quantum meruit appears to have been correctly excluded in that context, but as a necessary consequence of the view that emoluments attach by law to public office, mandamus has been found to be competent at page 172 as under:--
"Mandamus will lie in a proper case to compel the per formance of a ministerial duty to pay the salary or com pensation of a public officer, or to make an appropriation for such payment."
The considerations that control the use of mandamus in respect of holders of public offices are set out in Volume 35 of the book at page 19 as follows:
"One holding a public office is entitled to receive the salary or compensation attached to such office, and where the right to such salary or other compensation is clear and the amount thereof is certain, mandamus is regarded as an appropriate remedy to compel its payment by the officer charged with the duty, provided, of course, no other adequate remedy is avail able to afford the relief. In such cases mandamus is' a short cut by which, the matter of salary can be speedily determined, and it may not be in the interest of the public for officers' salaries to be held up throughout the necessarily longer period of the ordinary course of action at law, since for public officers to be engaged in long drawn out litigation over their compensation with the cities or counties they serve would likely tend to detract from the efficiency of their services."
The policy of maintaining efficiency is noteworthy.
11. Thus the original common law principle of the bounty of the Crown seems to have led the Courts of U. S. A. not only to by‑pass the principle of quantum meruit but also to by‑pass the contractual liability of the State to pay emoluments and yet to have enabled them to recog nise the obligation of the State to compensate the public officers as a legal incident to the creation and establishment of public offices. In England the development has been on different lines.
12. While considering the law of England, it is necessary to keep in mind that Scottish law is not common law. In the former law there may be no difference in the application of the principle of the bounty of the Crown to armed forces and civilian employees. This is clear from that portion of the judgment of Lord Blackburn, given in a Scottish case, which has been reproduced by the Privy Council in I. M. Lall's case (P L D 1948 P C 150). Their Lordships have declared that law to be the correct law for India. But Lord Goddard has apparently not recognized it to be com mon law because he has observed in Terrel v. Secretary of State for the Colonies ((1953) 2 Q B 482), on the basis of a previous judgment of the Privy Council itself in Reilly v. The King ((1934) 1 A C 176) at page 499, that:
"Sir Frank Soskice placed great reliance on Reilly v. The King, but I do not read that case as going anything like the length for which he contends. The actual point material to this case which the Judicial Committee decided was that, if the terms of an appointment definitely prescribe a term and expressly provide for a power to determine 'for cause', that excludes an implication that the appointment is at pleasure. The case also shows that there may be contractual rights before determination of a contract at will which are not inconsistent with a power to determine. Thus if a servant is engaged, whe ther by the Crown or an individual, at a salary but on the terms that he may be dismissed at will, if he is dismissed he may recover his salary for the time that he has served. Since that case, I think it may very well be that if the Crown appoints to an office on the term that it is to be held during good behaviour or that the holder is only to be removed for cause which is really the same thing‑he would be entitled formerly to present a Petition of Right and now to bring an action if he were removed without cause."
The above passage calls for special attention. According to it an employee of the Crown can recover salary for the time that he served. It is a recognition of the application of quantum meruit against the Crown and to that extent of the exclusion of the principle of the bounty of the Crown. The learned Judge has reiterated the view after two years at page 654 in Inland Revenue Commissioners v. Hambrook ((1956) 2 Q B 641) as under:
"But, while it is clear that no action for wrongful dismissal can be brought by a discharged civil servant, I may be allowed to say that I adhere to the opinion I expressed in Terrel v. Secretary of State for the Colonies, that he could recover his salary for the time he has served. He would claim on a quantum meruit, and I am, I think, fortified in this view by Reilly v. The King, by Reg v. Doutre (1884) 9 App., Cas. 745 and by Bush's case 1590 Cr. Eliz, 188, referred to in Mr. Robertson's book at page 338. It may well be that there is a difference in this respect between pay due to a civil servant and to a soldier whether private or officer. That a soldier cannot recover pay by action was laid down in Mitchell v. The Queen 6 T L R 332, and followed by Acton, J. in Leaman v. The King (1920) 3 K B 663, but the reason for this rule will be found in the judgment of Tindal, C. J., in Gibson v. East India Co. (1839) 5 King. N C 262; 274."
The recognition in the above passage of a difference in the posi tion of a civil servant and that of a soldier is important; so is the repeated recognition of quantum meruit. His Lordship's remarks at page 653 are no less important. They are:
"It is settled beyond controversy that the Sovereign can terminate at pleasure the employment of any person in .the public service, except in special cases where it is otherwise provided by law. If authority be needed for what may now be considered as axiomatic, I need only refer to Shenton v. Smith 1895 A C 229 and Dunn v. The Queen (1896) 1 Q B 116; but it is curious that there does not appear to be a definite and clear decision as to whether there is a contract of service between the Crown and its officers in the Civil Service."
The above passage draws attention to the absence of a clear decision as to contracts between the Crown and its officers of the Civil Service, and goes on to take note that‑
"Lord Atkin said, in Reilly v. The King, that a power to determine a contract at will is not inconsistent with the existence of a contract until so determined."
13. The last words are important because they provide an answer to the arguments, which is sometime advanced that the principle of the bounty of the Crown ought to be recognized as a matter of public policy so that the crown (or the State) may not be compelled to retain a servant against his (or its) will. The answer which those words provide is that the mere existence of a contract is not inconsistent with the power of the Crown (or the State) to determine it. Moreover, absence of the liability to pay is not a necessary part of the public policy that the Crown (or the State) should be free to get rid of the employees.
14. In I. M. Lall's case the Privy Council has positively declared the "correct law" to be----
"that the rule based on public policy which has been enforced against military servants of the Crown, and which prevents such servants suing the Crown for their‑pay on the assumption that their only claim is on the bounty of the Crown and not for a contractual debt, must equally apply to every public servant,"
and‑
"that this qualification must be read as an implied condition into every contract, between the Crown and a public servant, with the effect that, in terms of their contract, they have no right to their remuneration which can be enforced in a civil Court of Justice, and that their only remedy under their contract lies in an appeal of an official or political kind."
The above law was declared for India, but the view of the their Lordships, as expressed in Reilly v. The King and as appreciated by Lord Goddard in the above quotations from Inland Revenue Commissioners v. Hambrook ((1956) 2 Q B 641) does not appear to perfectly coincide with the declaration. Reilly's case had gone from Canada. There must have been good reasons for the difference. Their Lordships were even conscious that the view taken by them in Reilly's case could be understood to be different from that which was taken by the Exchequer Court as to contracts between holders of public office and the Crown, but they have left this discussion open by saying:
"In this particular case their Lordships do not find it necessary to express a final opinion on the theory accepted in the Exchequer Court that the relations between the Crown and the holder of a public office are in no decree constituted by contract. They content themselves with remarking that in some offices at least it is difficult to negative some contractual relations, whether it be as to salary or terms of employment, on the one hand, and duty to serve faithfully and with reasonable care and skill on‑the other. And in this connection it will be important to bear in mind that a power to determine a contract at will is not inconsistent with the existence of a contract until so determined:"
What is not left open by their Lordships to further consideration is the finding that certain contractual relations as to salary and terms of employment could not be negatived. The observations are as under:
"If the terms of the appointment definitely prescribe a term and expressly provide for a power to determine for cause' it appears necessarily to follow that any implication of a power to dismiss at pleasure is excluded. This appears to follow from the reason of the Board in Gould v. Stuart 1896 A C 575. That was not the case of a public office, but in this connection the distinction between an office and other service is immaterial. The contrary view to that here expressed would defeat the secu rity given to numerous servants of the Crown in judicial and quasi‑judicial and other offices throughout the Empire, where one of the terms of their appointment has been expressed to be dismissal for cause."
15. The policy of making the position of public servants secure appears to have been partly recognised in the above passage. In Shenton v. Smith (1895 A C 229) which was an earlier case in Australia, a contention was raised before their Lordships that a Colonial Government stood on a different footing for purposes of its relationship with public servants from the Crown in England. It did not prevail, but was not finally rejected. Their Lordships observed as follows:
"It has been argued at the bar that a Colonial Government stands on a different footing from the Crown in England, with respect to obligations towards persons with whom it has dealings. Their Lordships do not go into the cases cited for proof of that proposition, for they are quite different from this case and their principle nor authority has been adduced to show that in the employment and dismissal of public servants a Colonial Government stands on any different footing than the Home Government.
Without holding the argument to be wrong or untenable their Lordships have negatived the idea of the prerogative or bounty of the Crown and emphasised the terms of engagement as follows:
"They consider that, unless in special cases where it is otherwise provided, servants of the Crown hold their offices during the pleasure of the Crown; not by virtue of any special prerogative of the Crown, but because such are the terms of their engagement, as is well understood throughout the public service."
I venture to submit that the above passage draws attention to a real difference between the inability of an employee to recover emoluments owing to the prerogative of the Crown and his inability to do so owing to an implied term of his contract however well known such a term may be.
16. There is a pronouncement of the House of Lords also on this subject. The claim of an employee of the Crown came before their Lordships in Sutton v. Attorney‑General ((1923) 39 T L R 294). He was post office telegraphist who had joined the armed forces in 1915 on the strength of a circular which provided "full civil pay in addition to military pay", and served overseas. The question was whether he was entitled to the increments of civil pay. He made a petition of right. The Crown made it' a test case and the employee succeeded.
17. Professor Wade has commented in his book published in 1961 on Administrative Law at Page 237 on the above decision of the House of Lords and, on the decisions of the Privy Council in the: cases of Reilly and Shenton as follows:--
"On two occasions the Privy Council has more than hinted that there might be come contractual remedy for wrongful dismis sal. And the only decision of the House of Lords is to the effect that a Crown servant can sue for his pay . . . . . If the Courts should ever wish to overturn all their other deci sions, this case may offer them a powerful lever."
His comment on the State of common law on this subject is:
"The courts have tried to make do with the ordinary law of contract, realised that it will not quite fit, and put forward a number of inconsistent proposals for adapting it. A point has now been reached when Crown counsel implore Judges not to add to the confusion by propounding more doctrine."
18. I have noted above that, as early as in Shenton v. Smith, which was decided in 1895, a contention was raised before the Privy Council that the Colonial Government of Australia did not possess the immunities that were recognised for the Crown in England. That idea appears to have assumed impor tance after the Partition of India in 1947 and the resulting independence of the divided territories. In the territory which now forms India, I. M. Lall's case is no longer recognised as good and binding law. See State of Bihar v. Abdul Majid (A I R 1954 S C 245). The learned Judges of the Supreme Court of India have held that the correctness of the law enunciated by the Federal Court of India in Tara Chand Pandit's case (A I R 1947 F C 23) was not affected by I. M. Lall's case because no reference was made to that judgment by the Privy Council. They have further taken the view that in respect of India the prerogative of the Crown was limited by section 240 of the Government of India Act, 1935 and was abandoned by virtue of section 60, C. P. C.
19. In terms of section 60, C. P. C. the salary of a servant of the State can be attached, subject to certain limitations, for satisfying the claim of a creditor of such a servant. The note of D. F. Mulla on this provision in the 12th Edition of his commen tary on C: P. C. is as follows:--
"The salary can be attached only partially, except where it does not exceed Rs. 100 monthly in which case the whole of it is exempt from attachment. In view of this exemption it was held that a public officer could not be required to pay into Court a part of his salary as a condition precedent to his being adjudged insolvent. The object of the exemption appears to be to enable an officer to maintain himself and his family in a position suitable to his rank. This exemption did not occur in the Code of 1859; hence, the salary of a public officer and of the other persons mentioned in this clause was attachable to the extent of the whole as debt'. And since it could only be attached as a debt', it was not attachable until it had become due. Under the Codes of 1877 and 1882, and under the present Code, the salary, to the extent to which it is attachable, may be attached in advance. It is no valid reason for refusing the attachment that the attachment, if allowed, would not leave the officer enough to live on:
20. The above provisions could appear to be inconsistent with the principle of the bounty of the Crown See Lucas and Lucas ((1943) 2 All E R 110), but no reference was made to them in I. M. Lall's case and the learned Judges of our Supreme Court have held in the State of Pakistan v. Mehrajuddin (P L D 1959 S C 147) that:‑
"the mere fact that there is a statutory provision enabling the attachment of a part of the salary of a public servant does not affect the ,principle that the claim of the public servant himself against the State is not for a contractual debt, but can be addressed only to the bounty of the State, and may there fore be pressed only by an appeal of an official or political kind."
Their Lordships have also pointed out that the law laid down in L M. Lall's case‑
"has been the law of the country at any rate since the year 1948. It was enacted in the Government of India Act, 1935, that the law laid down by the Federal Court and the Privy Council should be binding upon all the Courts of the sub continent of India, and after 1947 that law remained applicable to the Courts in Pakistan."
The same view was expressed more emphatically in Government of West Pakistan v. Fazal‑e‑Haq Mussarat (PLD 1960SC208) as follows:--
"We do not find the slightest ground for thinking that the position has been altered in the least by the fact of the partition and the consequent constitutional changes."
21. The above pronouncements are completely binding on me and make my task easy. I accept them with all respect. But after those pronouncements, a few significant changes have taken place in the political structure and constitutional continuity of this country, to which I most humbly refer for consideration. One important change is the revolution which took place on the 7th of October 1958, bringing in its wake the Martial Law regime which has ended with the proclamation and enforcement of the present Constitution in 1962. The revolution marks a complete break in the continuity of the association of the British Crown with Pakistan: It demarcates the establishment of a new alliance with the United Kingdom without any allegiance to the British Crown. Common Law is no longer the reservoir of our law and Article 130 of the present Constitution completes its disconnection as a source of our law. As enjoins an important change in the administration of law, as follows:
"No Court shall have any jurisdiction that is not con ferred on it by this Constitution or by or under the law."
The Principle of the bounty of prerogative of the Crown is now foreign to the concept of the Islamic Republic of Pakistan. The sovereignty of Pakistan does not belong to him‑See the Preamble of the Constitution of 1962. The earlier judgments of the superior Courts now correctly reflect the outmoded law. It is, therefore, respectfully suggested that I. M. Lall's case in so far as it seeks to enforce the Scottish or Common Law principle of the bounty or prerogative of the Crown, is no longer good law in Pakistan.
22. The above discussion answers the second objection. The third objection should be understood and appreciated by keeping in view the circumstances which are the creation of the attitude of some officers and departments of the state towards the duty of honouring the liability of the State in contrast with the conditions that prevail in England. There the need for a Court to issue orders for payment of salaries has not existed. It is true that objections to such orders were raised on the basis of the prerogative or bounty of the Crown and were upheld by placing reliance on public policy or on an implied term of contract; but such objections and their acceptance by Courts of law created no adverse repurcussions on the rights of the claimants who ,were able to recover their dues by following a special procedure known as the Petition of Right. That procedure is now replaced by the Crown Proceedings Act, 1947. It is a different Procedure, but in the words of G. P. Wilson in cases and Materials on Constitu tional and Administrative Law:
"Although the Crown Proceedings Act, 1947, has gone some way towards putting the Crown in the position of an ordinary litigant and made it possible to sue the Crown for the torts of its servants, it is still necessary to treat the Crown sepa rately from other public authorities because of the special privileges it enjoys both as regards procedure and substantive law."
Service under the Crown has been called a paradox by Prof. Wade who has explained it as follows:---
"The Courts have to a large extent abrogated jurisdiction over contracts of service under the Crown. But Crown service, though legally the most precarious of all employments, is in reality the most secure. This is merely convention, but in the Civil service the convention is so deeply ingrained that there are probably better grounds for complaining that civil servants are excessively protected than for criticising the extra‑legal nature of their status."
23. There is thus a contrast between the security that exists in England for Civil employees of the Crown and the state of affairs which prevailed in India soon before its partition in 1947 and which has continued to prevail in this country there after. In Venkata Rao's case (AIR 1937 PC31) their Lordships of the Privy Council had noted that‑-
"there happen to have arisen for their Lordships' considera tion two cases where there has been a serious and complete failure (of the Government) to adhere to important and indeed fundamental rules"
applicable to government servants, but those lapses were not regarded as sufficient for altering their Lordships' opinion that the Central and Provincial Governments of India will ever bear in mind the need of bestowing supreme care on adherence, in letter and spirit, to the rules. That hope has not been fulfilled because even after such lapses were rectified by Courts, attempts have been made to evade liabilities. Their Lordships of the Supreme Court have expressed in Government of West Pakistan v. Fazal‑e‑Haq Mussarrat, their‑-
"grave concern at what appears to have developed into a fixed practice with Government Departments of evading the financial implications of declaration decrees wile purporting to accept them in form.
They have explained the above remarks by pointing out that‑--
"This is by no means the first case of its kind Which has come before us. The judgment in Mehrajuddin's case cited above, contained reference to three similar cases involving another Department and there has been a number of other cases as well. The frequency with which such cases a come before the High Court might perhaps in appear to have some measure explain the attempted extension of the writ jurisdiction of that Court to the enforcement of declaratory decrees of the nature here in question. We have held in the case of Mehrajuddin that this extension cannot be supported in law but with growing experience. of these cases, we find it impossible to withhold our sympathy from the unfortunate subjects whose desperate condition very probably inspired the initiative taken by the High Court."
24. About a year after the above case their Lordships had again to deal with the plight of Government e1nployees. See the remarks made by them in Pakistan v. Naseem Ahmad (PLD 1961 SC445).
" . it will not be inappropriate to point out' that the pitiable plight in which the respondents now end themselves cannot be allowed to continue indefinitely. Under the decrees of competent Courts of Law they were treated as being in the employment of the State and all the disadvantages and liabilities attaching to such employment continued to bind them, as for example they could not seek employment elsewhere and possibly could not even acquire any property. On the other hand by the authorities' failure to respect and honor the decrees passed by the Courts of the State they came to be placed in the deplorable position that they neither received any salary from the State nor were free to earn their livelihood elsewhere. It may be that they erroneously believed that the benefits of the declaration in their favour enured for all these years and they were entitled to be treated as if in service throughout but at the same time this State of affairs should not have been allowed to continue. It would, therefore have been only just and equitable on the part of the authorities concerned to have treated the temporary employees concerned as hav ing been in employment until the dates on which the sanctions for their respective posts lapsed, as .was indicated in the case of Noorul Hassan v. The Federation of Pakistan. This was unfor tunately not done. But even now, it will not be unreasonable to expect that the authorities will do what they ought to have done then and take steps to relieve the respondents of their plight and treat them with compassion, may even With generosity by honouring the decrees in their favour and giving to them at least the salaries which they would have received, had they continued in service during the periods the sanction's' for their respective posts lasted, for, after that they could not, in any event claim to remain in service. We can but hope that the bounty will not be unduly begrudged to the respondents."
25. If the conditions that prevail in this country had obtained in England the Courts would certainly have altered their opinion about what to expect from the Departmental attitude. They would have enforced fair and. straightforward deals. In the words of Prof. Wade:
"The Crown should be an honest man and if driven to break its contract ought to pay damages."
According to the author "a learned Judge has said:
"The Crown is under no obligation to accept the services of an officer . . . where the engagement is for a fixed term and the Crown wishes to dispense with the services of the officer before the agreed date, there is nothing to prevent it from suspending the officer and.. . paying him his agreed remune ration for the reminder of the contract period. The efficiency of the public administration would not be thereby impaired and the Crown would be acting in accordance with one of the most famous maxims of law, pacta sunt servanda. As it is, the Crown saves the public purse a relatively infinitesimal amount at the price of conduct which would be condemned in an individual."
26. The contrast that exists between the state of affairs of England and this country, makes the pleas that are founded on common law and on the immunities of the Crown unreal as well as far fetched in our country. In the present case the respondent was removed from service in 1957 and obtained a declaratory, decree in 1958 that he was in service, but no com pensation was offered to him until the Authority under the Payment of Wages Act, 1936 ordered the payment of a certain amount of wages to him. The attempts of the applicant to evade the financial liability of the declaratory decree was the cause of action of the respondent to invoke the Payment of Wages Act, 1936. That was distinct and different from attemp ting to execute the declaratory decree itself. This is the first part of the answer to the third contention of the applicant.
27. The second part of the answer is more technical. It is that the contention lost its force when it was conceded on behalf of the applicant that the applications of the respondent made under section 15 of the Payments of Wages Act, 1936 were maintainable. The proposition that they were maintainable could not be questioned in view of the judgment of the Supreme Court in Divisional Superintendent, N. W. R., Lahore v. Muhammad Sharif (P L D 1963 S C 340). Section 3 of the Act makes "every employer", includ ing the State, responsible for the payment "of all wages required to be paid under the Act." In third contention is accord ingly rejected.
28. Now, I turn to the first contention which was pressed by Mr. Suhrawardy in terms of section 17 of the Payment of Wages Act, 1936. The section lays down 30. days as the period of limitation for appeals ; therefore, counsel contended that the District Judge could not upset the order of the 26th of March 1960, but conceded that this objection had no force in these proceedings, in view of the scope of section 115, C. P. C. as explained in the penultimate paragraph of the judgment of the Supreme Court given in Muhammad Swaleh v. United Grain and Fodder Agencies (PLD1964SC97), if, in the opinion of this Court, that was a bad order.
29. Counsel for the parties, therefore, agreed that the crux of the present controversy, after the disposal of the four conten tions which have been discussed above, is the determination of the quantum of wages in terms of the rules that may be applicable to this case. On this question the Additional Advocate General has addressed the leading arguments. He said 'that there are three rules, out of those which are applicable to the employees of the Railway, which need examination for finding out as to which of them is strictly applicable. They are Rules Nos. 2044 (F. R. 54) 2126 (F. R. 85) of the Pakistan Railway Establish ment Code, Volume II, and Subsidiary Rule 9(v) of the Rules which are contained in Advance Chapter No. 5, which have been framed under Rule 1726 of the Pakistan Railway Establish ment Code Volume I. All of them are reproduced below with some of their words, in italics to specially draw attention to them:
"2044 (F. R. 54) Pay after reinstatement.‑When the suspen sion of a railway servant is held to have been unjustified or not wholy justifiable; or when a railway servant who has been dismissed, removed or suspended is reinstated;' the revising or appellate authority may grant to , him for the period of his absence from duty‑
(a) If he is honourably acquitted, the full pay to which he would have been entitled if he had not been dismissed, removed or suspended and by an order to be separately recorded, any allowance of which he was in receipt prior to his dismissal, removal or suspension; or
(b) if otherwise, such proportion of such pay and allowances as the revising or appellate authority may prescribe.
In a case falling under clause (a), the period of absence from duty will be treated as a period spent on duty. In a case falling under clause (b), it will not be treated as a period spent on duty unless the revising or appellate authority so direct.
"2126 (F. R. 85). Extraordinary Leave.‑----
(a) Extraordinary leave may be granted in special circumstances
(1) when no other leave is by rule admissible, or (2) when, other leave being admissible, the railway servant concerned applies in writing for the grant of extraordinary leave. Such leave is not debited against the leave account. No leave‑salary is admissible during such leave.
(b) The authority which has the power to sanction leave may grant extraordinary leave as in clause (a) in combination with, or in continuation of, any leave that is admissible, and may commute retrospectively periods of absence without "leave into extraordinary leave."
"Rule 9(V) of Advance Chapter No. 5.
9. Procedure for removal.‑--
(a) ..
(b) ..
(c) ..
Subsidiary.‑
(i) ..
(ii) ..
(iii) ..
(iv) ..
(v) If a Railway employee who has been removed from service or dismissed, files a declaratory suit in a Court of law and brings the decree to the effect that the orders of the admi nistration are ultra vires, void and inoperative and that such Railway employee continues to be in the service of the Railway, the employee in such cases should be put back to duty and dealt with afresh, the period of his absence from the date of removal from service or dismissal to the date on which he is put to duty being treated as 'qualifying service for all intents and purposes but no pay or allowance should be paid to the employee for the period of his absence.
Competent authorities have power to direct that the period of extraordinary leave (which was beyond the Railway employee's control) be counted for increments, vide proviso under Rule 2022(b)‑R."
Rule 1726, Pakistan Railway Establishment Code Vol. I.
"1726.‑The General Manager and the Financial Adviser (Communications) may, in respect of non‑gazetted railway servants under their respective administrative control, make subsidiary rules, not inconsistent with the rules in this section for the purpose of giving effect to them."
30. The Additional Advocate‑General contended that Rule 2126 was not applied by the Supreme Court, and that Rule 2044 has been repeatedly applied by their Lordships to cases of rein statement consequent upon Civil decrees. See, for instance, Ghulam Mustafa Shah v. Pakistan (P L D 1963 S C 268) and the Divisional Superin tendent N. W. Railway, Lahore v. Muhammad Sharif. In the case of Ghulam Mustafa Shah, Rule 2044 was applied in preference to Rule 2126 without much discussion because the Advocate‑General had conceded that the latter rule did not apply and that the former did. The Payment of Wages Act, 1936 was not con sidered in it. In the case of the Divisional Superintendent, N. W. R., Lahore, it was found that‑
"any sum which is payable by reason of the termination (of service) is also wages for the purpose of the (Payment of Wages) Act. Therefore, when the service of an employee is terminated without notice, in such a case the sum which is payable to him in lieu of notice will be considered as wages though he may not render any service during that month. Enough has been said to show that the definition of wages' cannot be confined to earned wages' only, and that the claim of the respon dent would thus be clearly covered by the definition in the Act.
The facts of this case, however, present no difficulty. The order of removal from service was cancelled and the claimant was reinstated to his old post. Thus the relationship of the employer and employee was not in dispute. As the employee was all along challenging the legality of the order of his removal from service, it could be said that he was all along ready and willing to render service to his employer. Hence the Authority, rightly held that the mere fact that the employee was not given work by the employer will not derogate his right to receive wages."
In the above circumstances it was open, in terms of the Judgment, to the Railway Administration to make an order under Rule 2044. If it did not do so then the authority could order the payment of full wages under the Payment of Wages Act, 1936. 1 quote their words:
"The Railway Administration, however, did not elect to make any order under this rule after re‑instatement of the employee. In these circumstances the Authority was justified to hold that the claimant was entitled to the payment of full wages for the relevant period."
Rule 2126 was not applied because that plea had not been taken at the proper time and no evidence was led in support of it. Overruling the objection based on that rule their Lordships held:
"We are also unable to accede to the contention that this respondent was not entitled to the benefit of the Payment of Wages Act."
In the present case too the Railway Administration did not, in the beginning, make an order under Rule 2044. Moreover, counsel for the applicant has conceded that Rule 2126 is not applicable because the question before the Administration was not as to what kind of leave was admissible, nor could the question other wise arise in this case because the respondent did not ask for leave at all. He could be granted Extraordinary leave only if he asked for leave when no other kind of leave was admissible, or if he applied, in writing, for such leave in preference to other kinds of leave. The rule is not meant to be used for sending employees on compulsory leave merely with the object of not paying their wages.
31. If one of the above quoted rules must be applied to this case than Rule 2044 and the Subsidiary Rule 9(v) are much more suitable than Rule 2126. The learned Additional Advocate General pointed out that the question of comparative suitability of all these provisions was not before the Supreme Court, nor was apparently anything urged before their Lordships as to the inapplicability of Rule 2044 after the Advocate‑General had conceded in Ghulam Mustafa Shah's case that it was applicable in preference to Rule 2126. He said that F. Rule 54 (a), which corresponds to Rule 2044, was held by the Government of India in 1938 with the concurrence of the Auditor‑General to be applicable to cases of departmental punishments and not to those of punishments by the Courts of law; therefore, in the latter class of cases granting full pay for the entire period of absence was treated as justified. That view is mentioned at page 6 of Volume II of the Fundamental Rules and the Supplementary Rules, as follows:--
"A question arose whether the action of the reinstating authority was covered by F. R. 54 (a) and was in order. The Government with the concurrence of the Auditor‑General have decided that F. R. 54 applies to departmental punishment and not to cases of punishment by a, Court of law for an alleged offence which has nothing to do with his official duties . . . In such cases the proceedings might be considered to have terminated on the date preceding the date on which the official was reinstated and the action of the reinstating authority in granting him full pay for the entire period of his absence treated as in order."
Moreover, he contended that Subsidiary Rule 9(v) which was framed under Rule 1726 itself proved that Rule 2044 was not applicable to cases in which Courts declared dismissals or removals to be void, for otherwise it would have been a redundant exercise to frame the subsidiary rule.
32. The Indian Courts have held that the language of Rule 2044 makes it inapplicable to those cases in which removals or dismissals have been declared by civil Courts to be void. In terms the rule applies to cases in which an employee is reinstated, but there is no re‑instatement in law where the removal or dis missal is declared to be void or inoperative. Moreover, the rule contemplates reinstatement by the departmental appellate or revisional authority, and not by the decree of a civil Court. See Divisional Superintendent, N. W. R. v. Nand Lal Dubey (A I R 1963 All. 123) and Risal Singh v. Union of India (A I R 1958 Pb. 155).
33. Additionally, the rule requires that "acquittal" referred to in it, should be held to be honourable or otherwise. It cannot be applied without such a decision. The word "acquittal" is applicable in its widest sense to release from criminal as well as civil obligations, but a sense of hour is difficult to associate with cases in which the removal or dismissal of an employee is held by civil Courts to be void and inoperative. In such cases the Courts ordinarily do not pronounce judgments on the correctness or otherwise of the charges that were departmentally framed for removing or dismissing employees.
34. A Division Bench of this Court has examined, with reference to criminal law, the meaning of the expression "honour able acquitted" in Sardar Ali v. Pakistan (P L D 1961 Lah. 664) as follows:
"The expression honourably acquitted' is not defined in the rules or anywhere else. We shall, therefore, give the same meaning to it as it conveys. in its ordinary and natural sense. Its ordinary meaning is that it has been found that the person concerned had been accused of the offence maliciously and falsely, and that after his acquittal no blemish whatsoever attaches to him. In cases where the benefit of the doubt is given to him or where he is acquitted because the parties have compromised or because the parties on account of some extraneous influence have resiled from their statements, then we think that in spite of the acquittal the person con cerned cannot be deemed to have been 'honourably acquitted'. This expression is not recognised in the Code of Criminal Procedure. There only the word acquittal' is used. It is, therefore, obvious that it is not the function of the Crimi nal Court to declare that the person concerned has been honourably acquitted of not. Having regard to the scope and meaning of the aforesaid rule, we think that it is for the revising or appellate authority to form its opinion on the material placed before it whether such a person has been honourably acquitted or not."
The underlying consideration of the above passage is that when somebody is charged with an offence there is a challenge to him to remove that cloud from his name in a straight contest, and not merely to meek out of the situation. When this idea is extended to charges of civil nature it must be taken to refer to a sense of honour like that of the gentlemen who at one time fought duels, irrespective of whether they wronged somebody or were themselves wronged. Their honour demanded the vindi cation of their point of view by defeating the challenge of oppo sition in an undeviating fight. If a declaratory decree given in favour of an employee is to be judged in this sense, as honourable or otherwise, then the methods of attack or defence of the employee, the conduct of the proceedings by or on his behalf as well as the material used by Court for giving the verdict in his favour, are to be judged by "the revising or appellate Authority" for applying this rule. If the departmental officers did not elect to do so under Rule 2044 then, in the words of the Supreme Court, the Authority appointed under the Payment of Wages Act, 1936 would be justified‑
"to hold that the claimant was entitled to' the payment of full wages for the relevant period."
Let me recall that in‑ this case the railway officers had originally failed to do so.
35. They did attempt to apply the rule when they were directed to do so and. allowed to the Respondent 1/10th of his salary. But the original department record or a copy of the order is not before me, nor has it been disclosed as to whether the officer who made the order was exercising the revisional or appellate powers. Additionally, there is nothing to show whether the respondent was at all held in terms of the rule, to have been acquitted honourably or otherwise.
36. Counsel for the applicant contended that it was immaterial as to what decision the departmental officers took in this respect because a Division, Bench of this Court has decided in Sardar All's case (cited above) that
"It is left to the absolute subjective discretion of the autho rity. If the authority takes the decision by using its discretion and judgment, that the person concerned has not been honourably acquitted, then in exercise of writ jurisdic tion this Court cannot convert itself into a Court of Appeal and substitute its opinion for the opinion of the com petent authority."
In view of the above observations, I called upon counsel to satisfy me that a competent authority had in fact decided in this case that the respondent was not acquitted honourably. He replied that official acts could be presumed to have been regularly done; but this presumption applies to the regularity l of an act that is admitted or proved to have been done, and not as a substitute for the proof of that act itself.
37. Here my attention was drawn to the following further observations of the above‑mentioned Division Bench of this Court:
"According to the rule, it is left to the discretion of the com petent authority to grant full pay or not, to the employee concerned for the period of his absence from duty, even though the authority may come to the conclusion that he has been honourably acquitted. The reason for this rule is so patent, that it need not detain us for long. During the period of absence, the employee does not perform any duty. The authority concerned is bound to suspend such a person because Rule 1711 of Pakistan Railway Establishment Code, Volume I, provides that as soon as a railway servant is arrested or committed to prison, he shall be suspended. The suspension in these circumstances cannot, therefore, he said to be unjustified, and no blame can be attached to the Railway Department for it."
The justification for not allowing full pay as contained in the above passage is that the employee did not perform. his duties. The trend of the pass4ge shows that this view was regarded as correct beyond any shadow of doubt; but their Lordships of the Supreme Court have held in appeal, viz. Divisional Superintendent, N. W. R., Lahore, that when an employee damand wages under the Payment of Wages Act, 1936, his claim cannot be resisted on the ground that he had not earned them. See the quotations in paragraph 30 above. One of the Judges who constituted that Bench had earlier held in Divisional Superintendent, N. W. R., Lahore v. Muhammad Sharif that:
"If the employee was willing to perform his part of the contract, but was not allowed to do so by the employer, it cannot be said that the employee had not fulfilled the terms of his contract and was, therefore, not entitled to any wages for the period during which he was not allowed to work,"
The above view was confirmed by the Supreme Court in the said appeal.
38. As absence from duty as a justification for withholding wages has been overruled by the Supreme Court I am perhaps free not to agree with the view that the authorities of the Railway Administration had the discretion to grant full pay or not to the employee‑
"even though the authority may come to the conclusion that he has been honourably acquitted."
I was told by counsel that the reason behind the above view of the‑Bench is the word "may" which occurs in the earlier part of Rule 2044. I have italicised it in paragraph 29 above. But that word is not intended to confer discretion. It is meant to simply serve as a part of the verb "grant" which precedes the two possibilities contemplated at (a) and (b) of the rule for granting the full pay or not. The directions for making payment are contained in the last part of the rule and their mandatory nature is made plain by the words "will be treated" and "will not be treated." There seems 'to be no discretion left in that.
39. Further, the revisional and appellate authorities are not free, in terms of the rule, after coming to the conclusion that the employee was not honourably acquitted, to grant any proportion of‑pay they like under part (b) of the rule because they have to grant‑
such proportion of pay and allowances as the revising or appellate authority may prescribe."
The word "prescribe" should be noted. It means, according to the Shorter Oxford Dictionary:
"To write or lay down as a rule or direction to be followed."
According to Balle ntine's Law Dictionary, it means:
"To lay down before hand as a rule: ordain, appoint, define authoritatively. To lay down authoritatively as a guide, direction, rule of action."
Admittedly, no portion had been prescribed before the order.
40. The conclusion of the above discussion is that Rule 2126 is not applicable to this case. Rule 2044 is not applicable either. Rule 1726 merely confers the power to make such subsidiary rules as are not inconsistent with‑-
"the rules in this section for the purpose of giving effect to them."
Thus the only rule, out of those which have been quoted above, that remains to be examined in Subsidiary Rule 9 (v). It was admittedly framed under Rule 1726 and is inconsistent with Rule 2044. Moreover, the case of the applicant is not that the respondent is not entitled, in terms of subsidiary rule, to any pro portion of pay and allowances. On the contrary, this rule was brought to my notice by the Additional Advocate‑General merely to support his contention that Rule 2044 was not regarded by the Railway Administration itself to be applicable to a case of the present type in which declaratory decrees are obtained from Court. My conclusion, in humility, therefore, is that none of the rules govern this case.
41. It follows from the foregoing discussion of fact and law that this revision application cannot be accepted, but before parting with this case I may mention that, according to counsel for. the applicant, the Railway Administration feels that the lower grade employee who are removed or dismissed by the 1st grade officers of their respective departments are mostly of the undesirable type, because by and large the higher officers are not interested in harming them; yet owing to the exigencies of litiga tion that is conducted in an impersonal manner by big depart ments against individuals who have personal stakes, they succeed in obtaining declatatory decrees and come back victorious to the Railway Administration after their duties were for years per formed by others and they had been merely setting undesirable examples. This is the chagrin and annoyance of the Railway Administration whose experience does not let it believe that success ful litigants are necessarily good people. The Administration, therefore, feels morally justified in finding ways and means to convince its good employees that bad examples are not worthy of emulation. I am glad that this aspect was explained, for otherwise the Administration appeared to indulge in unmitigated evil. But it reveals that at the bottom of the moral justification there is a sense of defeat in respect of such litigation owing to a certain type of departmental inefficiency. Actually, the Railway has many advantages over individual employees parti cularly those who were removed or dismissed. But defeatism that springs from inefficiency can only be cured by removing its cause. If machinations are employed to circumvent its harmful effects, then they might bring moral defeat too. I hope to be excused for referring to these platitudes on the ground that departmental rules ultimately reflect the departmental attitude.
42. I am convinced that this revision should be dismissed. It is hereby dismissed with costs.
K.B.A. Petition dismissed.
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