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Regular First Appeal No. 117 of 1960, decided on 29th April 1966.
, Art 178(3) Government servant‑Payment of salary‑No longer a bounty of State but in nature of legal right for services rendered‑Decree for payment of arrears of salary can be granted by Court.
The Federation of Pakistan v. Mrs. A. V. Isaacs P L D 1956 S C 431 ; Noorul Hassan and others v. The Federation of Pakistan P L D 1956 S C 331; The State of Pakistan and another v. Mehrajuddin P L D 1959 S C 147 ; Pakistan v. Muhammad A. Hayat P L D 1962 S C 28 and Muhammad Anwar v. Government of Pakistan P L D 1962 Lah. 443 ref.
Abdur Rauf Sheikh for Appellant.
Sh. Ata Ullah Sajjad A. A.‑G. assisted by Ehsanul‑Haq for Respondent.
Dates of hearing : 12th and 13th April 1966.
This first al peas is by the plaintiff Mrs. A. V. Isaacs, and has arisen out of a suit filed by her on. The 22nd of November 1949, to challenge the order of her dismissal from the post of a Relieving Nurse in the Cairn's Hospital, Lahore, run by the North Western Railway as it was then called. She ores appointed to the temporary establishment of the North Western Railway in terms of an agreement signed by her on the 2nd of May 1940, and was serving as a nurse in the Cairn's Hospital, Lahore, when on the 5th of November 1947 she was served with a charge‑sheet under the Disciplinary Rules of the Department. She was discharged from service but re‑instated on appeal on the 30th of July 1948. A fresh charge‑sheet was then served on her on the 14th of April 1948, but on her appeal it was withdrawn on the 27th of July 1948. She was then transferred to Karachi but she refused to move, with the result that she received a third charge‑sheet on the 12th of January 1949, alleging misconduct inasmuch as she had willfully absented herself from duty. She made a representation against it but the same was turned down, and she was discharged from service on the 18th of March 1949. Her appeal from the order removing her from service was dismissed by the General Manager.
2. After serving a notice on the General Manager of the North Western Railway under section 80 of the Code of Civil Procedure she brought a suit in the Court of a Civil Judge against the Federation of Pakistan. In the plaint‑she alleged her dismissal as her cause of action and claimed the following reliefs against the, defendant‑respondent:‑
(a) A declaration that the order discharging her from service as Nurse passed. on the 18th of March 1949, by the Divisional Superintendent of the North Western Railway at Karachi, was void, illegal, in‑operative and ultra vires, and notwith standing this order the plaintiff continued legally to be in the service of the North Western Railway as Nurse, and was entitled to hold office as such and to enjoy all of the rights and privileges attached to the post including residence in Railway Quarter ,No. 79/H‑3, Mayo Road, Lahore, Provident Fund, bonus and other privileges.
(b) Recovery of arrears of pay and allowances from August 1948 to the 15th of November 1949, amounting to Rs. 3,135‑3‑6 at Rs. 202‑5‑0 per month.
(c) Average pay for the remaining period of 21 years of her service which amounted to Rs. 50,982‑12‑0 at Rs. 202‑5‑0 per month, and
(d) Rs. 5,000 as compensation for vexation, mental worry, loss of social status and economic distress and damage to her physical Health caused by the illegal acts of the Railway Department totaling Rs. 59,117‑15‑6.
3. The suit was contested by the Federation of Pakistan, and the late Mr. Tufail Ahmad, Civil Judge of the Ist Class at Lahore, framed the following preliminary issues in the suit:‑
(i) Has this Court jurisdiction to bear the suit
(ii) Did the plaintiff give valid notice under section 80 of the Civil Procedure Code to the Department
(iii) Is the suit for damages and arrears of pay competent according to law
(iv) Has this Court no jurisdiction to entertain the question of validity of the orders, which are the subject matter of this suit
4. The learned trial 'Judge found the first issue in favour of the plaintiff and the remaining issues against her As a result Federation he dismissed the suit of Mrs. Isaacs by his order dated the 13th of February 1951. Thereupon Mrs. Isaacs came up in appeal ‑ to the High Court which was heard by a Division Bench consisting of B. Z. Kaikaus and Akhlaq Hussain JJ., and accepted by their order dated the 8th of October 1954. The arguments before the learned Judges were confined to the questions whether the notice under section 80, C. P. C. was according to law, whether the respondent was a permanent or a temporary employee, and whether some of the reliefs prayed for in the suit could be granted. The learned Judges held that the notice satisfied the requirement of the law, that the respondent was in the permanent employment of the North Western Railway, that the contention raised by the State that if the respondent was a permanent employee her services could be terminated after the period of notice as given in the agreement of service was untenable, and that the claim for Rs. 5,000 as damages and the claim for future 'salary were not maintainable in law. They, therefore, remanded the suit for trial on the merits, with the further direction that the question whether the respondent was entitled to arrears of salary should be determined on the law applicable to the agreement between the parties.
5. The Federation of Pakistan went up in appeal to the Supreme Court on the strength of a certificate granted by the High Court, and on its behalf two main contentions were raised; firstly, that the finding of the High Court that the notice under section 80 of the C. P. C. was valid, was incorrect; and secondly, that on the evidence the finding should have been that the respondent was not a permanent but a temporary employee and that whether she was permanent or temporary there being a stipulation in her service agreement that her services could be terminated on notice, she had no cause of action to come to Court of law.
6. Their Lordships dismissed the defendant's appeal by their order dated the 2nd of November 1956 and this judgment is reported as The Federation of Pakistan v. Mrs. A. V. Isaacs (P L D 1956 S C (Pak.) 431). Their Lordships held that the finding of the High Court regarding the validity of notice was correct. As regards the second point raised before them they observed that the question whether Mrs. Isaacs was a temporary or a permanent employee‑ did not really arise in the case because if a public servant was removed or dismissed from service, it was wholly immaterial for the purposes of section 240 of the Government of India Act, 1935 whether he was a permanent or a temporary employee. They pointed out that they had discussed this matter in Noorul Hassan and others v. The Federation of Pakistan (P L D 195‑6 S C (Pak.) 331) and stated that the short issue to be determined in the case was whether the provisions of section 240 were or were not complied with. They went on to state that:‑
"‑We are, therefore, quite clear that the order of discharge, was an order of dismissal within the meaning of section 240 of the Government of India Act and that if the opportunity required by that section was not given to the respondent in the manner laid down by the Privy Council in Lall s case the order of dismissal would be void, irrespective of whether the respondent was a permanent or a temporary employee. Accordingly we dismiss the appeal with costs and maintain the order of the High Court remanding the case for decision of the question whether the provisions of section 240 of the Government of India Act were or were not complied with and for determining the respondent's claim for arrears of salary from August 1948 to 15th November 1949."
7. In the concluding paragraph of their judgment their Lordships gave the following further directions:
"This is a 1949 case, and there should be no more delay in its disposal. The issues involved in it now are perfectly simple and should be determined as early as possible. On the issue of section 240 the learned Civil Judge should require the appellant to produce the file relating to the inquiry in pursuance of the charge‑sheet served on the respondent on the 12th of January 1949, and see whether according to that record the respondent was given an opportunity under section 240 of the Government of India Act. If the record is not produced or if the record does not show that the required opportunity was given to the respondent, he should, in view of our observations, place the onus of the issue on the appellant. In case he comes to the conclusion that no such opportunity was given to the respondent he should grant relief to the plaintiff on the lines of the relief granted by this Court in Noor‑ul‑Hassan and others v. The Federation of Pakistan."
8. On receipt of this case after remand, the trial Judge, after perusing the record produced by the defendant, framed the following further issues:
(1) Had the provisions of section 240 of the Government of India Act, 1935 been complied with by the defendant before passing the order in dispute (O. P. D.)
(2) Is the plaintiff entitled to the recovery of salary for the period from August 1948 to 15th November 1949 If so, at what rate and on what account (O. P. P.)
(3) Relief.
9. By his order dated the 30th of October 1959, Mr. Nazir Ahmad Malik, Civil Judge of the 1st Class at Lahore, held that from the documentary and ‑oral evidence produced before him it was clear that no opportunity to show cause against the order of removal was afforded to the plaintiff as required by section 24Q of the Government of India Act, 1.935. As regards the second issue be observed that on the basis of the last pay certificate (Exh. P. 1/1) it appeared that the plaintiff's monthly emoluments were Rs. 202‑3‑0 and that she had been paid tier salary up to the 31st of July 1948, but it was not necessary to calculate the amount payable to her for the reason that in Noor‑ul‑Hassan's case as well as in two other cases their Lordships of the Supreme Court had held that a Government servant was not entitled to a decree for damages or arrears, of salary. On these findings he granted the plaintiff a declaration to the effect that the order of discharge passed by the Divisional Superintendent Karachi dated the 12th of March 1949 was illegal, inoperative, of Pak. ineffective null and void; but he, however, dismissed her claim with regard to damages and arrears of salary. With regard to costs he directed that:
"The counsel's fee according ‑to the jurisdiction value which shall be paid by the plaintiff to the defendant.
10. In the present appeal Sh. Abdur Rauf the learned counsel for the plaintiff‑appellant has raised the following contentions:
(a) That in deciding issues No. 1 in the appellant's favour the trial Court has failed to give relief which was prayed for in the plaint to the effect that notwithstanding the order of removal the appellant continued to be in the service of the North Western Railway as a Nurse and was entitled to hold that office and to enjoy all other rights and privileges etc. attached to this post;
(b) that the learned trial Court has; misconstrued the directions of their Lordships of the Supreme Court on the question of the appellant's claim for the arrears of salary, especially when this issue was framed by the Supreme Court itself, that the cases mentioned by the learned trial Judge are distinguishable from the facts in the present suit, where the claim for arrears of salary is based on a contract between the parties, and that the doctrine of "the bounty of the state" no longer holds good;
(c) that considering the fact that the decision on issue No. 1 was in appellant's favour the order for the payment of costs on the whole jurisdictional value was extremely hard on the appellant who has been kept out of work for the past seventeen
years.
11. As regards the first contention objecting to the nature of the declaration granted by the learned trial Judge, suffice it to say that in their order dated the 2nd of November, 1956, their Lordships of the Supreme Court had directed that:
"In case he (i.e. the trial Judge) comes to the conclusion that no such opportunity was given to the respondent he should grant relief to the plaintiff on the lines of the relief granted by this Court in Noor‑ul‑Hassan and others v. The Federation of Pakistan."
In Noor‑ul‑Hasan's case the order of the Court, in accordance with the view of the majority of the learned Judges, was:
"The appeals of Nur‑ul‑Hasan, Amanullah Khan Sherwani, Habib Ahmad, Qadir Ahmad Siddiqui, Kader Basha Aslami, and Akram Abbas are all allowed with costs throughout and they are granted a declaration to the effect that the order of the Inspector‑General of Police dated the 30th December 1952, dispensing with their services is illegal, void and inoperative,"
The learned trial Judge has granted the declaration in precisely the same terms and, therefore, no question arises of adding anything further to the declaration already granted.
12. On the question of the appellant's claim for arrears of salary from August 1948, to the 15th of November 1949, it is contended by Sh. Abdur Rauf, that, in the first place, there was no direction given by the Supreme Court to the trial Judge to grant relief to the appellant on the lines approved by their Lordships in Noor‑ul‑Hassan's case. It is submitted that this direction related only to that part of the suit which rested on the allegation of non‑compliance with the provisions of section 240 of the Government of India Act and did not extend to the question of the payment of arrears of salary. It is further contended that although in Noor‑ul‑Hassan's case it was observed that no decree could be passed against the State for arrears of salary owing to a Government servant, yet their Lordships have gradually moved away from this position, and it can now be said that they are prepared to permit a decree to be passed in such matters in view of the attitude adopted by the executive authorities in several cases where Government servants had successfully obtained declarations from competent Courts that their removal or dismissal from service was illegal, inoperative and void.
13. Shaikh Abdur Rauf is right in saying that the direction given by the Supreme Court in the concluding portion of their Lordship's judgment relates only to that part of the relief which was dependent upon the question whether the provisions of section 240 of the Government of India Act had been complied with or not, and that it did not directly apply to the question of the payment of arrears of salary; but it is clear that this last question has to be decided in accordance with the law laid down by the Supreme Court in various cases having a bearing on this point.
14. Apart from Noor‑ul‑Hassan's case the question of the payment of salary to Government servants has come up for detailed examination by their Lordships of the Supreme Court in The State of Pakistan and another v. Mehrajuddin (P L D 1959 S C (Pak.) 147) and Pakistan v. Muhammad A. Hayat (P L D 1962 S C 28). These two and some other cases have been noticed at some length in a very elaborate judgment delivered by the late Chief Justice M. R. Kayani in the case of Muhammad Anwar v. Government of Pakistan (P L D 1962 Lah.). We consider that we cannot do better than to respectfully adopt the conclusions reached in this case by the late Chief Justice.
15. After referring to several cases on the subject, his Lordship observed as under:
"It will not be over‑modest to apply the word preposterous' to the situation which arises when a Civil Court of the State declares that an officer continues to belong to the service and the head of a department of the State refuses to take him back or pay him hi salary. Apart from the fact that the observations A. v. Isaacs made by the Supreme Court from time to time denote an Federation expression of regret over the abuse of Mehrajuddin's case, there is also a clear indication of a desire to render that decision as harmless as possible by virtually holding that bounty exhausts itself after it has been exercised, even though there was no bounty in its exercise, for it was exercised under duress. In one aspect, therefore, the bounty and pleasure of the State has been controlled."
(Paragraph 10 of the judgment):‑
"Fortunately, the recent decision of the Supreme Court in Pakistan v. Muhammad A. Hayat has further redeemed the legal position, and, if I may respectfully repeat the language of Denning L. J. in Rex v. Northumberland Compensation Appeal Tribunal, it has somewhat restored' mandamus to its rightful position'
. Mr. Justice Kaikaus observed in the judgment which he wrote for the Bench:
On the fact that in England a mandamus cannot issue to the Crown no argument can be based that it cannot issue to the Government of this country. The constitutional status of the Crown is wholly different from that of the Government of Pakistan. The Crown of England occupies a unique position. As stated in Dicey's Law of the Constitution (p. 527 of 1950 Edition), it is a fundamental rule of English Law that no action can be brought against he Crown. No process of any kind can be issued by the Courts 'against the Crown. Another recognised principle is that, The ‑Crown can do no wrong'. The Crown is not responsible for its acts to any body or authority and no legal right can be said to exist in any person against the Crown."
Nothing of what is stated above applies to the Government of this country. The Government is a creature of law with limited and defined powers. Its acts in relation to the citizens of the State are subject to scrutiny and control by the Courts. It is burdened with legal duties in favour of the citizens, which can be enforced in a Court of law. If it acts in excess of its powers the Courts can grant appropriate relief, and if it fails to perform its duties it can be obliged to perform them. Even a Civil Court of the lowest jurisdiction can issue an injunction to the Government to perform the duties imposed on it by law.' (Paragraph 16 of the judgment).
"The effect of this decision is that mandamus can now issue to Government to pay to a Government servant his salary at a certain rate, and it is only logical to say further that mandamas can issue to require Government to pay his salary to a Government servant or to pay arrears of salary. This, it will be recalled, was not countenanced by The State of Pakistan v. Mehrajuddin where payment of salary was held to be merely an exercise of the bounty of the State, and not the performance of public duty There is no reference in case either to The State of Pakistan v. Mehrajuddin or to Pakistan v. Naseem Ahmad but if an order requiring the Government to pay salary at a certain rate could be held to have been passed in the proper exercise of the grant of mandamus, the duty to fix a public servant's salary at a eertain rate must have been impliedly regarded as a public duty. It would not be logical to say that while the fixation of salary is a public duty, its payment is not public duty. ,
(Paragraph 17 of the judgment).
16. Since the judgment in Muhammad Anwar's case was delivered, the right of a Government servant to receive remune ration has been given constitutional protection by Article 178 of the 1962 Constitution of the Islamic Republic of Pakistan. Clause (3) of this Article prescribes that: -
"Rules made for the purposes of clause (2) of this Article shall be so framed as to ensure (a) that the terms and conditions of service of a person (in so far as those terms and conditions relate to remuneration or age fixed for superannuation) are not varied to his disadvantage and
(b)
.
17. Although by the 6th Amendment of the Constitution approved by the National Assembly at its Dacca Session in March 1966 certain changes have been introduced with regard to the age of superannuation, yet the protection with regard to the terms and conditions, of service relating to remuneration has remained in‑tact. Now, it seems to us that it would be a highly inconsistent position to adopt for the Courts of law to hold on the one hand that by virtue of the guarantee contained in clause (3) of Article 178 of the Constitution the terms and conditions of a Government servant cannot be varied to his disadvantage in the matter of remuneration payable to him; and to say on the other that remuneration can be denied to him altogether without any legal remedy being available to compel its payment. To put it differently, the effect of the guarantee contained in clause (3) of Article 178 of the Constitution appears to us to be that the payment of remuneration to a Government servant must now be regarded as something in the nature of a legal right for services rendered, and is no longer to be considered merely as a bounty of the State, especially in view of the exposition by Kaikaus, J. in Muhammad Hayat's case of the true character of the State in Pakistan.
18. It is true that this constitutional guarantee was not available to Mrs. Isaacs, the appellant before us, in the year 1949, yet in view of the trend of law as explained by M. R. Kayani Chief Justice in Muhammad Anwar's case it is clear that she would be entitled to a decree for the payment of arrears of her salary for the period in question. From the judgment of the trial Court it appear that, there was evidence on the record, in the shape of her last pay certificate (Exh. P. 1/A) that her total monthly emoluments were Rs. 202‑3‑0. Accordingly the amount payable to her as salary from the 1st of August 1948 to the 15th of November 1949, works out to Rs. 3,133.94.
19. For the foregoing reasons we accept this appeal to the extent that the appellant is granted a decree for Rs. 3,133.94 as arrears of her salary from the 1st of August 1948, to the 15th of November 1949. On this view of the matter the appellant would be entitled to have her full costs as against the defendant respondent in the trial Court as well as in this Court. The decree of the trial Court is accordingly modified in this respect as well.
K. M. A.
Appeal accepted.
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