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Criminal Appeal No. 51 of 1955, decided on 20th January 1956, from the order of Raja Hamid Mukhtar Magistrate 1st Class, Lahore, dated the 28th October 1954,
(a) Pakistan Railway Establishment Code, Vol. I, Rule 145 ‑Transfers‑G. G. a competent authority to order transfer Evidence Act (I of. 1872), S. 88‑Presumption under section- Limited to terms of message transmitted‑Presumption as to person by whom such message was delivered for transmission Expressly prohibited‑Government of India Act, 1935, S. 77 Sch. III of Rules of Business, framed by G. G. under section Persons competent to act on behalf of G. G. Whether Secretary etc., empowered to make order.
Rule 145 of the Pakistan Railway Establishment Code, Vol. I leaves no doubt as to the competency of the G. G. to order the transfer of an employee from one railway to another and by virtue of Sch. III of the Rules of Business framed by the G. G. under section 17 of the Government of India Act, 1935, the Director‑General Pakistan Railways who is an Ex‑Officio Joint Secretary, Government of Pakistan is a competent authority to make such order acting on behalf of the G. G.
In the present case the order of transfer which consisted of a wireless message was held inadmissible in evidence because presumption under section 88 of the Evidence Act was only with regard to the message transmitted. The latter portion of that section expressly prohibits the Court from making any presumption as to the persons by whom such message was delivered for transmission. Hence in the absence of any legal evidence on the record showing the respondent's transfer by a competent authority, the respondent could not be said to have disobeyed any lawful order of transfer given to him.
Duration and validity‑Government of India Act, 1935 S. 72 as amended by India and Burma (Emergency Provisions) Act, 1940.
The clear effect of the words of the India and Burma (Emergency Provisions) Act, 1940, on section 72 of the Government of India Act, 1935 is that the Ordinance promul gated during the period specified in section 3 of the former Act are subject to no time limit .as regards their existence and validity unless imposed by the Ordinance themselves, or other amending or repealing Legislation:
J. K. Gas Plant Manufacturing Co., (Rampur) Ltd. and others v. Emperor A I R 1947 F C 38 fol.
S. 197‑Sanction for prosecution of Public servant.
Sanction for prosecution of a public servant is necessary under section 197 of the Code of Criminal Procedure if the offence alleged to have been committed. by him is committed by him while acting or purporting to act in the discharge of his official duty.
M. Z. Kitchlew on all dates and A. R, Changez, A. G., assisted by Kanwar Saadat Ullah Khan on 2nd/3rd January 1956 for the Crown.
Sardar Muhammad Iqbal Khan for Respondent.
This is an appeal under section 417 of the Code of Criminal Procedure against the order of Raja Hamid Mukhtar, Additional District Magistrate, Lahore, acquitting Mr. Abdur Rashid (respondent) of charges under section 5 (a) and (b) read with section 7 of the Essential Services (Maintenance) Ordinance (XI of 1941).
The facts out of which this appeal arises are: The respondent belonged to the Pakistan Railway Service of Engineers and was posted as Executive Engineer, Projects and designs at Lahore in 1952. He was transferred to the East Bengal Railway at Chittagong by a wireless message from the Director‑General, Pakistan Railways, to the General Manager, N. W. Railway, Lahore. The prosecution case is that this order was duly communicated to the respondent who disobeyed it and thus committed an offence under section 5 (a) read with section 7 of the Ordinance. As regards the charge under section 5 (b) ibid., the prosecution case is that the respondent tendered his resignation on the 1st of August 1952, abandoning his employment without any reason able excuse.
On the 26th of July 1952, the General Manager, N. W. Railway, received the following wireless message from the Director‑General, Pakistan Railways
"No. Con/52/2/E dated 26th July 1952 from Pakrad Karachi to Noverca Lahore and EBENEZER CTG.
Mr. A: M. Akhoond is appointed to officiate as Deputy Chief Engineer Bridges N‑. W. Railway until further orders AAA Mr. S. S. Ali Wahidi, Executive Engineer, E. B. Rail way, is transferred as Deputy Director, Civil Engineering, Railway Division, Karachi AAA Mr. Abdul Rashid DEC N. W. Railway, is transferred to the E. B. Railway AAA Mr. Rashid should be asked to report on E. B. Railway with in 3 weeks, i.e., by 16th August 1952 AAA on Mr. Rashid's reporting on E. B. Railway, Mr. Wahidi should move on transfer to Karachi AAA Mr. Wahidi should be warned to keep himself in readiness to come to Karachi on transfer by utilizing minimum joining time AAA Both Messrs. S. S. Ali Wahidi and Abdur Rashid should travel by air."
A copy of this message was forwarded to the respondent as would appear from Exh. P. B., which runs:‑
"N. W. R. LICENSED TELEGRAPHS
Office of origin Date Service instructions
'LHR' 1‑8‑52. 'Wireless'
XXR{DIVRAIL KARACHI}
940‑E/5‑XIV (E. I.) AAA Z. H. Syed, Offg. Divisional Engineer I Karachi is transferred as Offg. X. E. N. P. & D. Head quarters Office; Lahore vice Abdur Rashid transferred to E. B. Railway, Chittagong vice S. S. Ali Wahidi AAA Muhammad Siddiq Offg. D. E. N. III should take over from Syed immediately.
Sd. Illegible,
FOR GENERAL MANAGER,
NOVERCA. (PERSONNEL)
Copy by post in confirmation Copy to Mr.Abdur Rashid Offg. X. E, N., P. cff D. Head quarters Office, Lahore for information. He will please travel by air and join the E. B. Railway by the 16th August 1952. He should hand over charge of the post of X. E. N., P. & D. to X. E. N. (G) in case Mr. Syed does not relieve him in time."
The respondent tendered his resignation (Exh. D. A.) on the 1st of August .1952. The Director‑General Pakistan Railways, did not accept it as' would appear from Exh. P. E. which is being reproduced for reference:‑
CONFIDENTIAL
Registered A. D.
From: The General Manager, To: Abdul Rashid,
Esquire, X. E. N.
26, Muslim Town,
No. 726‑E/1336(L) Lahore.
Lahore the 3rd October 1952
Copy of the following is forwarded for information.
D. A. I. for General Manager.
Below:
Copy of wire No. 62‑ENI/5‑II dated 27th September 1952 from the Director‑General (Railways), Railway Division, Government of Pakistan, Karachi, to the General Manager, N. W. Railway, Lahore.
Reference correspondence resting with Pak‑rail letter even No. dated 23rd September 1952, notify immediately to Abdul Rashid in reply to his notice dated 1st August 1952, that since his class of employment is essential for maintaining services necessary to the life of community, his resignation or intention to terminate his service is not acceptable to Government and he must, therefore, proceed to take charge of his appointment on the E. B. Railway, failing which he will render himself liable to prosecution under the Essential Services (Maintenance) Ordinance AAA Acknowledge receipt."
The respondent made the following endorsement (Ex. P. E/:1) on it:‑
"Please go ahead with the prosecution. I have already made it perfectly clear that I am not serving your admi nistration any longer.
Sd. Abdul Rashid."
D/‑ 4‑10‑52.
The learned counsel for the respondent contended that his client could not be convicted under section 5 (a) of the Ordinance as the original order of transfer had not been proved at the trial. The prosecution placed Exh..P. A., COPY A of the wireless message, on the record. The learned Advocate General rightly conceded that a copy of the wireless message was not admissible in evidence. Section 88 of the Evidence Act provides:‑
"The Court may presume that a message, forwarded from telegraph office to the person to whom such message purports to be addressed, corresponds with a message delivered for transmission at the office from which the message purports to be sent; but the Court shall not make any presumption as to the person by whom such message was delivered for transmission."
The presumption under this section is only with regard to A the terms of the message transmitted, i.e., that a message forwarded to the addressee from the telegraph office corres ponds with the message delivered for transmission at the office of origin. The latter portion of the section, however, expressly directs that the Court shall not make any presump tion as to the person by whom such message was delivered for transmission.
The material portion of Rule 145 of the Pakistan Railway Establishment Code, Volume I reads:‑
' Transfers.‑Ordinarily, a railway servant shall be employed throughout his service on the railway to which he is posted on first appointment and shall have no claim as of right for transfer to another railway. In the exigencies of service, however, it shall be open to the Governor‑General to transfer the railway servant to any other department or railway or project in or out of Pakistan."
The rule admits of no doubt whatever as to the competency of the Governor‑General to order the transfer of the res pondent from the N. W. Railway to the E. B. Railway. By virtue of Schedule III of the Rules of Business framed by the Governor‑General under section 17 of the Constitution Act, such an order could be made by a Secretary, Joint Secretary, Under Secretary or Assistant Secretary to the Government of Pakistan on behalf of the Governor‑General. The only document, however, relating to the respondents transfer, which is on the record, is Exh. P. A. which is in. admissible in evidence. In the absence of any legal evidence on the record showing the respondent's transfer by a competent authority, we cannot hold that the respondent disobeyed any lawful order of transfer given to him. His acquittal, therefore, of a charge under section 5 (a) of the Essential Services (Maintenance) Ordinance, 1941, cannot, therefore, be challenged.
As regards the charge under section 5 (b) ibid. it cannot be denied that the respondent abandoned his employment without reasonable excuse. The learned counsel for the respondent conceded that the respondent handed overcharge in pursuance of Exh. P. B. and did not proceed to Chittagong. Moreover, the respondent's endorsement (Exh. P. E/1) clearly shows that the respondent, after tendering his resigna tion, which was not accepted, did not consider himself to be in the service of the Pakistan State Railways. He must, there fore, be held to have been guilty of willful abandonment of his appointment without reasonable excuse and his acquittal, therefore, of a charge under section 5 (b) of the Ordinance was erroneous.
The learned counsel for the respondent urged that even if it be assumed that the respondent abandoned service within the meaning of section 5 (b) of the Ordinance, he cannot be convicted as the Ordinance was not in force at the relevant time. According to the learned counsel, the Ordinance had lapsed on the 1st of April 1946. The Ordinance in question was promulgated by the Governor General in 1941 in exercise of the powers conferred on him by section 72 of the Ninth Schedule of the Government of India Act, 1935. Under section 72. as it stood originally, Ordinances were limited to an effective life of six months only from the date of promulgation. At the time of promul gation of Ordinance XI of 1941, section 72 of the Constitution Act stood amended by the India and Burma (Emergency Provisions) Act, 1940. Subsection (3) of section 1 of the said Act provided that Ordinances made under section 72, during the period specified in section 3 of the Act, would have effect as if the words "for the space of not more than six months from its promulgation" occurring in section 72 were omitted. The period specified in section 3 of the India and Burma (Emergency Provisions) Act, 1940, is "the period beginning with the date of the passing of this Act and ending with such date as His Majesty may by Order in Council declare to be the end of the emergency which was the occasion of the passing of this Act." The date of the passing of the said Act was the 27th of June 1940 and the emergency was notified to have come to an end on the 1st of April 1946. The learned counsel for the respondent contended 'that on the expiration of the emergency, i.e., the 1st of April 1946, the Ordinance in question (XI of 1941) automatically came to an end. In J. K. Gas Plant Manul facturing Co., (Rampur) Ltd. and others v. Emperor (AIR 1947 F C 38) their Lordships of the Federal Court of India considered the question of the life of the Ordinances promulgated by the Governor‑General when section 72 stood amended by the India and Burma (Emergency Provisions) Act, 1940, and observed:‑
"The clear effect of the words of the India and Burma (Emergency Provisions) Act, 1940, on section 72 is that Ordinances promulgated during the period specified in section 3 of the Act are subject to no time limit as regards their existence and validity unless imposed by the Ordin ances themselves, or other amending or repealing Legislation, whether by Ordinance or otherwise."
Respectfully following the above view, we hold that the Ordinance in question was in force on the date on which the respondent abandoned service. He could, therefore, be pro ceeded against under section 5 (b) of the Ordinance.
The learned counsel for the respondent next contended that, the General Manager, N. W. Railway had no valid authority under section 7 (3) of the Ordinance for' filing a complaint against the respondent. The General‑Manager,
N. W. Railway, filed the complaint on the receipt of the following order (Exh. P. F.):‑
"S. No. 18/A
Government of Pakistan,
Ministry of Communications,
(Railway Division),
Karachi 21‑8‑1952.
The Central Government is pleased to sanction prosecution of Mr. Abdul Rashid (Assistant Engineer N. W. R., Lahore) under section 7, Essential Services (Maintenance) Ordinance and to authorise the General‑Manager, North Western Railway to file a complaint against the above‑said officer on behalf of the Central Government."
Sd.
Director‑General Railways,
Ex‑Officio Joint Secretary.
Dated 21st August 1952. Government of Pakistan:''
Relying on section 17 of the Constitution Act, the learned counsel for the respondent argued that Exh. P. F. does not express to have been made in the name of the Governor General. Section 7 (3) of the Ordinance (XI of 1941) reads:‑
"No Court shall take cognizance of any offence under this Ordinance except upon complaint in writing made by a servant of the Crown authorised in this behalf by the Central or a Provincial Government."
Exh. P. F. is signed by the "Director‑General, Railways, Ex‑Officio Joint Secretary, Government of Pakistan." The learned counsel urged that section 17 (2) of the Constitution Act empowers a Secretary etc. to authenticate an order and does not empower him to make one. This contention lacks force. Schedule III of the Rules of Business empowers a Secretary etc. to make and execute orders and other instruments in the name of the Governor‑General. The Rules of Business have been made by the Governor‑General in exercise of his powers under section 17 of the Constitution Act for the conduct of business of the Federal Government. While framing these Rules the Governor‑General authorised the officers mentioned in Schedule III to make and execute orders and other instruments in his name. This indicates a clear delegation of powers. The order of prosecution (Exh. P. F.) having been signed by the Joint Secretary, who is authorised to make and execute orders in the name of the Governor‑General vide Schedule III, was perfectly valid.
The learned counsel for the respondent lastly urged that the prosecution is bad in law for want of sanction under section 197 of the Code of Criminal Procedure. There is no force in this contention either. Section 197 of the Code of Criminal Procedure reads:‑
"(1) When any person who is a judge within the meaning of section 19 of the Penal Code, or when any Magistrate, or when any public servant who is not removable from his office save by or with sanction of a Provincial Govern ment or some higher authority, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty no Court shall take cognizance of such offence except with the previous sanction‑
(a) .
(b) . .."
However the language of section 197 may be stretched, it cannot be said that the respondent abandoned employment in the course of his official duty.
After considering the material on the record, we are of the opinion that the prosecution has succeeded in establishing a charge under section 5 (b) of Ordinance XI of 1941, against the respondent.
As regards sentence, it has been urged by the learned counsel that the respondent is a refugee from Jullundur who lost property and relatives on the other side at the time of the Partition and that he intended to settle down in some place in the Punjab. He was, however, not given a chance to do so and was transferred to various places at short intervals between 1947 and 1952. The learned counsel further urged that the respondent had been contributing to the Provident Fund, according to .the rules, for eleven years, the total amount of which comes to about Rs. 15,000 which amount has not been paid and is not likely to be paid to him. The allegations in the respondent's resignation (Exh. D. A.) do give one an impression that the respondent felt that he was receiving an unsympathetic treatment at the hands of the superior officers and he was, therefore, forced to resign from the service. This matter is, however, not before us for decision. But we can take notice of the above facts, which were not challenged at the bar, while considering the question of sentence.
With due regard to the entire circumstances, we think that a sentence of imprisonment till the rising of the Court will meet the ends of justice in this case. We, therefore, convict the respondent under section 5 (b) read with section 7 of the Ordinance (XI of 1941) and sentence him to imprison ment till the rising of the Court.
K. B. A./A. H. Appeal accepted.
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