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Suit No. 455 of 1951, decided on 22nd November, 1953.
S. 240 (3)‑Temporary employee under a contract‑Termination of service in accordance with contract does not amount to dismissal‑Notice under S. 240 (3) not required.
Where a person's services are temporary in accordance with his contract of service, the order terminating services on notice, is not equivalent to dismissal, reduction or removal, and notice under section 240 (3) of Government of India Act is not necessary. His services can be terminated as required by the contract. The plaintiff cannot Claim to remain as an employee, after the notice, holding a "civil post."
Ajit Kumar Mukerji v. Chief Operating Superintendent, E. 1. Railway A I R 1953 Pat. 92 ; Jayanti prasad v. The State of Uttar Pradesh A I R 1951 All. 793 ; Krishnagopal Dhawan v. The State of Punjab A I R 1952 Pb. 366 and Desraj v. Dominion of India A I R 1952 Pb. 205 rel.
Yusuf Ali Khan v. Province of Punjab P L D 1949 Lah. 219 distinguished.
Shamsul Ghani, for Plaintiff.
Choithram, for Defendant.
--‑The plaintiff has filed the suit for a declaration that the order of his purported removal from service dated 15th August, 1950 was void and inoperative, and he continues to be in the service of the defendant.
The material allegations in the plaint are that the plaintiff was a Guard in the permanent service of Jodhpur Railway, which lay partly in Marwar State and partly in the Province of Sind called Jodhpur‑Hyderabad British Section, that due to the partition the plaintiff was required by the General Manager, Jodhpur Railway to opt for service either in Pakistan or in Marwar, and the plaintiff recorded his final option for service in Pakistan, that on and before 14th August, 1947 the plaintiff was posted at Mirpurkhas on the Jodhpur‑Hyderabad British Section of Jodhpur Railway and continued to remain posted there in the capacity of a Passenger Guard in grade I of Jodhpur Railway equivalent to grade III of the N. W. Railway, that on 1st August, 1948 the Jodhpur‑Hyderabad Section was taken by Pakistan Government and amalgamated with the N. W. Railway, that the Jodhpur Railway authorities terminated his service from the mid‑night of 31st July, 1948 and he was assured that the N. W. Railway authorities had decided to take the plaintiff in the service of N. W. Railway from 1st August, 1948 that he continued to serve on the N. W. Railway as Guard grade III from 1st August, 1948 to 18th August, 1950, and that on 18th August, 1950 he received a copy of an order dated 15th August, 1950 passed by the Divisional Personnel Officer, N. W. Railway, terminating his services on 24 hours' notice with effect from 18th August, 1950, offering the plaintiff fresh appointment in the lower category of Guard grade II as an alternative to the plaintiff's discharge. The plaintiff contended that the order of the termination of his services amounted to removal from service, that it was illegal and wrongful, that being an optee from permanent service, he was entitled to the continuation of permanency of his tenure and continuation of his. original grade, and that he could not be lawfully removed from service without the framing of a charge‑sheet against him and that the provisions of section 240 (3) of the Government of India Act, 1935, read with section 277, as adapted by the Pakistan (Provi sional Constitution) Order 1947 were contravened. The plaintiff sent several petitions to authorities but to no effect, and then served a notice under section 80 Civil P. C.
The defendant filed a written statement and inter alia pleaded that the plaintiff's services were terminated as they were temporary, and no longer required. The allegations in the plaint were denied.
The following issues were framed :‑
(1) Whether the plaintiff was employed as a permanent Guard by Jodhpur Railway
(2) Was the section of Jodhpur Railway, lying in the Province of Sind called Jodhpur‑Hyderabad British Section, and was it owned by the British Indian Government before 1948
(3) Whether the plaintiff was given any assurance by the Jodhpur Railway that the N. W. Railway authorities had decided to take up the plaintiff as alleged by him
(4) On what terms was the plaintiff taken up by the N. W. Railway administration
(5) Whether the order terminating the plaintiff's services amounted to removal from service as alleged by plaintiff If so, is the said order illegal and wrongful for the alleged reasons or any of them as alleged by the plaintiff (Covers paras. 7‑9 of the W. S.).
(6) Whether the notice under section 80 Civil P. C. is not in order
(7) To what relief is the plaintiff entitled
The name of the plaintiff appears at page 12 of Jodhpur Railway Gazette Extraordinary dated 17th January, 1947. On behalf of the plaintiff reliance was placed on the report of Indian Railways Depreciation Fund Committee 1922‑23 at page 78‑79, Jodhpur Railway Audit Manual, page 7, and Working Estimates of Jodhpur Railway, page 117, showing jodhpur‑Hyderabad Railway as British Section. These entries cannot prove ownership of the Railway. The plaintiff in his cross‑examination admitted that Jodhpur‑Hyderabad British Section was managed by Jodhpur Durbar, and his contract of service was with Manager, Jodhpur Railway, who employed him on the said section before partition, and who terminated his services when the said section was taken over by the defendant in August, 1948. Wali Hussain and Asquith Luke George, Assistant Personnel Officers, stated that the said portion of jodhpur Railway was part of jodhpur State Railway, which was not at par with other Class I State Railways of undivided India, where staff were given the option to serve in any of the Dominions. The notice dated 26th July, 1947 of the Manager, Jodhpur Railway, showed that the discharged employees would be fitted in the N. W. Railway graces of pay, which would be generally commensurate with the scales of pay on which they were employed and new agreement of service would be entered into after the date of taking over. The two witnesses of the defendant have stated that they were taken on purely temporary basis. Wali Hussain who was entrusted to appoint ex‑Jodhpur Railway staff, has stated, that in accordance with such instructions (Exhs. 20 and 21) of the Government and the General Manager, letters of appointment, vide list Exh. 18, prepared by him were issued to the plaintiff. This was according to the agreement. He has produced a specimen form, Exh. 19, which runs as under :‑
"I can offer you temporary appointment on Rs. 72‑3 P. M. as guard grade II with immediate effect. The appointment will be purely temporary liable to termination on giving 24 hours' notice on either side subject to the rules in force on North Western Railway. If you are prepared to accept the appointment on these terms, please let me have your willingness on sub‑joined form and report yourself for duty to S‑M‑MPS at once.
(Sd.) (Illegible),
Assistant Personnel Officer, N. W. Rly., Karachi.
I accept the terms of temporary‑appointment as offered in your letter No. 220‑E., dated the 1st August, 1948.
Name
Designation
Station
Signature"
The plaintiff received notice Exh. 5/1 from D. P. O., N.‑W. Railway, as under:‑
"North‑Western Railway.
No. 220‑E/185‑PI. Divisional Office, Karachi,
dated 15th August, 1950.
To
Mr. Abdul Wahab,
Temporary Guard, Grade III,
Mirpur Khas.
Reg : Re‑appointment of ex‑J. Railway Staff on N. W. R.
As your services as Guard Grade III are no longer required you are given 24 hours' notice of termination of your tempo rary service, in terms of your agreement from 18th August, 1950.
You are however, offered re‑appointment as Temporary Guard on Rs. 72‑3 P. M. as Guard Grade II (60‑120 pres cribed scale) as an alternative to your discharge and in case you are willing to accept the offer, please signify your willingness in writing to S. M. Mirpurkhas by 19th August, 1950 latest to avoid a break in your service on this Railway.
This appointment too is temporary subject to your pass ing medical examination by D. M. O. KC., if not already done on this Railway and is liable to termination on' 14 days notice on either side."
The plaintiff has not produced any letter of appointment or any agreement executed by him.
The learned advocate for the plaintiff has relied upon the ruling reported in Yusufali Khan v. Province of Punjab (P L D 1949 Lah. 219) that a temporary employee is entitled to notice under section 240 (3), Government of India Act. The expression "person as aforesaid" in section 240 (3) refers back to section 240 (1) and this includes "every person who holds a civil post." The last expression is widely worded, and on a plain construc tion, includes all holders of civil office whether permanent or not. In this case the plaintiff was dismissed for misconduct before period of his service expired. But where a person's services are temporary in accordance with his contract of service, terminating services on notice, the order is not equi valent to dismissal, reduction or removal, and notice under section 240 (3) of Government of India Act is not necessary, and his services can be terminated as required by the contract. The plaintiff cannot Claim to remain as an employee, after the notice, holding a "civil post." Reference may be made to Ajit Kumar Mukerji v. Chief Operating Superintendent, E. 1. Railway (A I R 1953 Pat. 92), following Jayanti Prasad v. The State of Uttar Pradesh (A I R 1951 All. 793) ; Krishnagopal Dhawan v. The State of Punjab (A I R 1952 Pb. 366) and Desraj v. Dominion of India (A I R 1952 Pb. 205).
My findings on issues Nos. 2, 3 and 5 are in the negative. My finding on issues 'No. 1 is in the affirmative. My finding on issue No. 4 is that the plaintiff was taken upon the terms mentioned in Exh. 19. Issue No. 6 is dropped.
As a result of the above findings, I dismiss the suit with costs.
A. H. Suit dismissed.
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