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Civil Appeal No. 114 of 1966, decided on 12th December 1967.

(Or appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 15th April 1966, in Writ Petition No. 1352 of 3963).

(a) Constitution of Pakistan (1962), Art. 179 (2) read with Arts. 177(l)(b) & 234, and Government of India Act 1935 S.240(3)‑Railway temporary employee appointed against a permanent post indefinite in duration in 1955‑Such employee's case held, did not fall under Art. 179 (2)‑Constitution of 1962 riot retrospective either by express enactment or necessary implication.

The appellant was appointed in 1954 in a temporary capacity as a physical instructress of the (Railway) St. Andrews School, Lahore, and in 1955 she, though temporary, was appointed against a permanent post indefinite in duration. In 1962, proceedings were drawn up against her for in subordination and in March 1963, she was discharged front service.

It was contended that the appellant's case fell within Art. 179 (2), Constitution of Pakistan (1962) and therefore her services could be terminated on one month's notice:

Held that the decision in Abdul Majid's case P L D 1965 S C 208 was fully applicable to the case and as such the appellant's case would not fall under Art. 179 of the Constitution.

It was not possible to construe Article 1 792) as a repeal of the right enjoyed under the cold Constitution.

Abdul Majid v. Mashaffe Ahmed P L D 1965 S C 208 rel.

Ghulam Sarwar v. Pakistan P L D 1962 S C 142 and Noor‑ul Haswn v. Federation of Pakistan P L 1) 1.956 S C 331 ref:

The Constitution of 1962 was not retrospective either by express enactment or necessary implication.

Zafarullah Khan v. Custodian of Evacuee Property P L D 1964 S C 865 ref.

(b) Constitution of Pakistan (1962), Art. 177(1)(b)‑Final decision removing Railway servant from service‑Such decision taken without "any proper inquiry"‑Decision held to be void, illegal and of no legal effect.

(c) Constitution of Pakistan (1962), Arts. 177(1)(b) & 179 (2) Temporary Railway servant appointed against permanent post indefinite in duration‑Removal "after inquiry" cannot be construed as a discharge on one month's notice ire accordance with terms of employment‑ [Capt. Muhammad Azhar v. Commissioner of Karachi and another P L D 1966 S C 253 and The Federation of Pakistan v. Mrs. A. V. Isaacs P L D 1956 S C 431 ref.].

Agha Abdul All Khan, Advocate Supreme Court instructed by Fazal Karim, Attorney for Appellant.

Raja Said Akbar Khan, Advocate‑General West Pakistan (Aslam Riaz Hussain, Advocate Supreme Court with him) instructed by Ijaz Ali, Attorney for Respondents.

Date of hearing : 12th December 1967.

FAZLE‑AKBAR, J.‑

This app6al, by special leave, is brought by one, Miss Naseem Jahan Naim, and calls in question the dismissal by the High Court of a petition filed by her for a writ to quash the order passed key the Personnel Divisional Officer, Pakistan Western Railway, removing her from service.

In September 1954, she was appointed in a temporary capacity as a Physical Instructress of the (Railway) St. Andrews School, Lahore. In November 1955, the said post with an enhanced scale of salary was advertised and she having possessed the requisite qualifications, was selected and allowed to continue in service in the revised scale. As these was a complaint of rudeness and insubordination against her, an inquiry was ordered to be held and she was served with a charge‑sheet in November 1962. On 8‑12‑62, she was informed that the Inquiry Committee will meet at 9 a.m. on 17‑12‑62. Her objection to the constitu tion and impartiality of the Inquiry Committee was overruled and the inquiry proceedings v hick were to commence on 17‑12‑62 were adjourned to 14‑1‑63 on the ground of her illness. She again objected to the constitution of the Inquiry Committee and eventually the constitution of the Committee was changed from senior subordinates to two gazetted officers and the date of inquiry was fixed for 23‑1‑63. On the said date she declined to make a statement or to produce any evidence before the Committee because she was unwilling to accept an Inquiry Committee the members of which were below the rank of a Divisional Superintendent of the Pakistan Western Railway. On 18‑2‑63, a notice was issued to her giving her ten days' time to show cause as to why she should not be removed from service. She duly submitted her explanation, but the same was not accepted and she was discharged from service with effect from 26‑3‑63. Her appeal to the Divisional Superintendent against the above order was dismissed.

She then filed a writ petition in the High Court challenging legality of the above order on the ground that it was without any proper inquiry as to the charges levelled against her. Her main grievance was that she had been denied the constitutional pro tection as embodied in Article 177 (1)(b) of the Constitution. The learned Judges of the High Court in dismissing her application came to the conclusion that Article 179(2) of the Constitution had the effect of excluding temporary servants from the ambit of the operation of the constitutional safeguards and that she being a temporary employee her case fell wholly within the said Article and therefore her services could be terminated on one month's notice.

The main question for determination in this appeal is whether the case of the appellant would fall under Article 1.79 of the Constitution.

She was appointed in 1954 in a temporary capacity and in 1955 her appointment, though temporary, was against a permanent post indefinite in duration. In 1962, proceedings were drawn up against her for insubordination and in March 1963 she was discharged from service.

In the case of Ghulam Sarwar v. Pakistan (P L D 1962 S C 142), this Court held that protection of section 240 (3) of the Government of India Act, 1935, was applicable to a permanent employee of the Railways. In the case of Noor‑ul‑Hasan v. Federation of Pakistan (P L D 1956 S C 331), it was held that an employee holding an appointment indefinite in duration, although not in a substantive capacity but expressly described as temporary, was also entitled to the constitutional safeguards.

In the case of Abdul Majld v. Mushaffe Ahmed (P L D 1965 S C 208), the question was the same as in the present case. Abdul Majid, a temporary employee, holding an appointment indefinite in duration prior to the promulgation of the present Constitution, was held to be protected by Article 181 of the Constitution of 1956. In that case, the Court while repelling the contention that Abdul Majid not having been appointed substantively in the post his case would fall under Article 179 of the present Constitution,

observed :‑

" The earliest decision on this point is that published as Yusaf All v. Province of Punjab P L D 1949 Lah. 219. The law was declared to that effect by the Supreme Court in the case of Noor‑ul‑Hassan P L D 1956 S C (Pak.) 331. For the proposition that discharge by notice where the competent authority is so empowered by the conditions of the employment is, in the circumstances of his case, equivalent to dismissal or removal in the sense of the Constitution. the appellant relies on the judgment of this Court delivered in the case of Ghulam Sarwar P L D 1962 S C 142. Although the law was there declared with reference to section 240 (3) of the Act of 1935, it applies equally to the interpretation of Article 181 (2) of the Constitution of 1956, which was expressed in identical terms. The protection thus available to him, against termination of his employment by notice, was continued through: the period of Martial Law by Article 6 of the Laws (Continuance; in Force) Order, 1958 and into the period following the promulgation of the present Constitution, by virtue of Article 234 (1). His case falls outside Article 179 altogether."

This case is, therefore, fully covered by the above decision. When this appeal came up for hearing before a Bench of three learned Judges of this Court, the learned Advocate‑General contended that the view, taken in Abdul Majid's case required re‑consideration. As the point raised involved interpretation of a constitutional provision, this appeal was placed before the full Court.

The learned Advocate‑General has contended that clause (2) of Article 179 of the Constitution is general in its terms, whereas Article 234 which preserves the term of service of State servants in Government employment prior to the promulgation of the Constitution, is declared to be subject to the Constitution and the law' and that this aspect of the matter has not received consideration in Abdul Majid's case. The above contention has no substance in it. This Court while dealing with the nature and scope of Article 179 (2) of the Constitution, observed in the above case :‑

"Article 179 is itself an innovation, inasmuch as it provides constitutional authority for the employment of public servants in a temporary capacity, which was never previously thought necessary. Both in the Government of India Act, 1935, and in the Constitution of 1956, the reference to temporary servants and the terms and conditions of their employment, is oblique. In section 24 ( of the Act which in subsection (2) required that the conditions of service of public servants should be prescribed by rule, a proviso saved from this requirement, persons employed temporarily on the terms that their employ ment may be terminated on one month's notice or less. This saving was repeated, in the same terms, in Article 182 of the Constitution of 1956, but in neither of these constitutional instruments, which were operative from 1935 to 1958, was there any provision similar to those now made, by Article 179 of the new Constitution, viz. :‑

(I) empowering the President, in regard to the Centre, to 'authorize the temporary employment of persons in the service of Pakistan;

(2) empowering likewise the making of 'rules for regulating such temporary employment'; and

(3) saving such 'temporary employment' from the operation of such other Articles in Chapter I of Part VIII as Article 175, prohibiting the employment of aliens, Article 176, placing the tenure of Central employees within 'the pleasure of the President', Article 177, inter alia providing for a show‑cause notice and proceeding prior to dismissal, removal or reduction in rank, and Article 178, providing, inter alia that such employ ment should be governed by rules made by competent authority and that there should be certain rights of appeal.

There may be other points of difference as well, but it will be sufficiently clear from the foregoing details, that Article 179 is intended to create, in respect of the general power of giving employment in the public service, a new scheme, differing from that in force prior to the 7th June 1962, which requires express athorization and regulation by express rules, in respect of temporary employment, and such a scheme cannot be thought to impose obligations upon persons already in such employment. For such persons, Article 234 (1) guaranteed continuance of the terms and conditions under which they were previously serving. The appellant is one of such persons. He is entitled, by Article 2 of the present Constitution, 'to enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law,' and that includes the law as settled by earlier judicial decisions, in particular, decisions given by the Supreme Court of Pakistan. In confining their attention to the mere words of Article 179, and ignoring the other provisions of the Constitution, as well as authoritative pro nouncements of this Court, the learned Judges of the High Court (we say so with due respect) have taken altogether too limited a view of the matter before them."

The learned Advocate‑General has attempted to construe Article 179 (2) as if it operated as a repeal of the right enjoyed under the old Constitution. It will suffice to say that such a e construction is not possible from the words used in the said Article. Furthermore, the new Constitution is not retrospective either by express enactment or necessary implication, vide Zafarullah Khan v. Custodian of Evacuee Property (P L D 1964 S C 865).

For the reasons stated above, we hold that the decision in Abdul Majid's case is fully applicable to the instant case and as such the appellant's case would not fall under Article 179 of the Constitution.

We now proceed to consider the legality of the inquiry and the order of removal. A show‑cause notice was served on the petitioner in November 1962, but she did not take part in the, N inquiry which was fixed for 23‑1‑63. It was contended by the learned Advocate‑General that thereafter an ex parte GE inquiry was held and the report of the inquiry was duly M submitted to the authority concerned. The Railway Administration has, however, failed to produce any such report. The following letter of the President of the Inquiry Committee dated At 23‑1‑63, however, does not support the above contention

"Miss Naseem Jahan Naim, P. T. S., St. Andrews School, P. W. R., Lahore, attended the enquiry on call at 9‑40 hours date, i.e., 23‑1‑63 and declined to give any evidence in the light of her letter No. N. E. 14, dated 23‑1‑63. Hence no further proceedings could be conducted. The copy of the above letter is unclosed herewith. She in her request enclosed desires an enquiry to be held by the officers other than those belonging to Lahore Division."

From the above letter of the President of the Inquiry Committee ft is clear that no report of the inquiry could be submitted to the authority concerned as "no further proceedings could be conducted, in the absence of the appellant. It is proper to say that the statement in the second show‑cause notice which was served on 4‑2‑63 that "The following conclusions have been arrived at ex parte consequent on your refusal to attend the enquiry on 23‑1‑63 in connection with the charges against you vide notice of even No. dated 17‑11‑62" was baseless and without any foundation. By the second notice the appellant was asked to submit her explanation within ten days as to why a penalty of removal should not be imposed on her. She duly submitted her explanation, but the same was not accepted and on 22‑3‑63 the following order was passed by the Divisional personnel Officer:

"You are hereby informed that the explanation received in response to Notice No. Misc/St. And S. dated 26‑1‑63, has been carefully considered by the Executive Officer (D. P. O.) Lahore and in accordance with his orders the following penalty has been imposed on you with effect from 26‑3‑63 A. N. :‑

Penalty imposed‑removal from service. You are given one month's pay in lieu of notice of discharge from service."

Thus, it is evident that the final decision for removal of the appellant which was taken without any proper inquiry was illegal v and of no legal effect.

The learned Advocate‑General realizing his difficulty attempted to argue that it was not really a case of removal but a case of discharge on one month's notice. An identical question arose in the case of Capt. Muhammad Azhar (P L D 1966 S C 253). In that case, Capt, Muhammad Azhar was a temporary employee, holding an appointment indefinite in duration and a disciplinary proceeding was drawn up against him. The Commissioner came to a finding that the Government servant concerned was guilty of misconduct and on that ground passed an order of his removal and at the end of the order added the following

"This may please be treated as 15 days' notice in accordance with clause (1) of your appointment letter No. 1 (6)/59‑ D.B., dated the 1st February 1960."

This Court while repelling the contention that the discharge was in accordance with the terms of his service, observed

"It is clear that the Commissioner had come to a finding that the appellant was guilty of misconduct and had on that ground passed an order of removal under sub‑rule (4) of rule 4 of Government Servants (Efficiency and Discipline) Rules. The mere fact that he added at the end of his order a reference to clause (1) of the appointment letter of the appellant cannot convert an order passed in the exercise of disciplinary authority into an order of discharge on fifteen days' notice. Removal which is based on a finding of misconduct carries with it a stigma and is quite different in its effects from a simple order of termination of service. If charges are framed, an inquiry is conducted, findings are recorded, and an order of removal passed, an illegality committed in such disciplinary, proceedings cannot be cured by a mention of the terms of employment of the civil servant concerned. The order of removal has to stand on its legs."

Similar view was also taken by this Court in The Federation of Pakistan v. Mrs. A. V. Isaacs (P L D 1956 S C 431). In that case too, it was held that after an inquiry termination of service would be removal in spite of the service of notice in accordance with the terms of employment.

For the reasons stated above, we allow this appeal, set aside the order of the High Court and declare that removal of the appellant from service is void and of no legal effect and that she continues to hold the post from which she was removed. If it is desired to remove her from service, then the inquiry started in November 1962 must be completed in accordance with the relevant provisions of the Constitution and such rules as may be applicable to her case. The appellant will be entitled to her costs in both the Courts.

A. H. Appeal allowed.

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