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Suit No. 425 of 1949, decided in December 1952.

, S. 42, proviso‑"Further relief"‑In suit for declaration that dismissal from service was void and inoperative‑Whether plaintiff is able to seek "further relief"‑Government of India Act, 1935 S. 240 (3).

M, an officiating 'B' grade driver of G. I. P. Railway in India opted for Pakistan on partition, and was placed in the service of the North Western Railway as grade II driver at Kotri on the same pay. On being asked to make a declara tion he stated that his substantive appointment in India was that of a "C" grade driver on the scale of 90‑20‑15‑125, adding the remarks "refer to my personal file". He was charge-sheeted with making a false statement in his declaration and was required to make his defence within 7 days and show cause why he should not be dismissed or punished with any of the lower penalties specified in the service rules then applicable. Thereafter be was dismissed from service without being given any "reasonable opportunity" for showing cause against the action proposed to be taken in regard to him" under section 240 (3), Government of India Act, 1935. M then gave notice under section 80, Civil P. C. and filed the suit for a declaration that his dismissal from service was void and inoperative and that he legally remained an employee of the North Western Railway.

On the issue whether the suit for a mere declaration could succeed when M had not claimed the further relief of damages for breach of contract to continue him in service.

Held, that it was not the plaintiff's case that he had been dismissed in breach of a contract to continue him in service. His case was that he had not been validly dismissed and that the purported dismissal of the plaintiff's dismissal was void and inoperative and was no dismissal at all and that he continued in service. Moreover even if the terms of the contract to continue the plaintiff in service were proved, which had not been done, section 240 (1) of the Government of India Act, .1935, make the plaintiff unable to seek the further relief of claiming damages against the Crown, other than the recovery of arrears of pay for the period of actual service which would be such a "further relief", as every person who is a member of the Civil Service of the Crown or holds any civil post under the Crown, holds office during her Majesty's pleasure.

, 1935, S. 240 (3)‑"reasonable opportunity of showing cause" against dismissal from service, what is‑Dismissal in contravention of S. 240 (3)‑Effect of.

Where no "reasonable opportunity" of showing cause against the action proposed to be taken had been given to the plaintiff as no definite conclusion had been come to on the charges. Held; until that stage has been reached the charges are unproved. When that stage has been reached the statute gives to the civil servant the opportunity for which subsection (3) of section 240 of the Government of India Act makes provision.

The High Commissioner for India and another v. I. M. Lall P L D 1948 P C 150 followed.

Quare : the decision in The Punjab Province v. Tarachand A I R 1947 F C 23 and Abdul Majid v. Province of Bihar A I R Pat. 17.

Shamsul Ghani for Plaintiff.

Choithram Dewandas for the Federation of Pakistan.

---The plaintiff a driver of the North Western Railway, has filed this suit against the defendant for a declaration that his dismissal from the service of the North Western Railway is void and inoperative and that he legally remains an employee of the North Western Railway. The facts giving rise to the suit are briefly as follows

The plaintiff was an officiating B' grade driver on the G. I. P. Railway in India when on the Partition, he opted for Pakistan. He was relieved at Bhopal on 19th July 1947 and' reported to the Transfer Officer, North Western Railway at Lahore within fifteen days thereafter. He was sent to the Divisional Superintendent; Karachi, who placed him as grade II driver at Kotri. He drew Rs. 90 per month as his pay which was the same as his pay in G. I. P. Railway. He was required to make a declaration which is Exh. 6/2 in which he stated his substantive appointment was that of a 'C' grade driver on the scale 90‑20‑15‑125 adding the remarks "refer to my personal file". By Exh. 6/3 he was required to state inter alia whether or not he was a confirmed driver on the G. 1. P. Railway, and by Exh. 6/4 her replied that he had not mentioned in the declaration that he had been confirmed but had invited a reference to his personal file. Exh. 6/5 is a charge sheet containing two charges to which Exh. 6/6 is the plaintiffs answer. The charges were dropped and afresh charge Exh. 6/7 was preferred. He was charged with making a false statement in his declaration that his substantive post on the G. I. P. Railway was that of a driver of the grade Rs.90‑20‑15‑125 whereas he was really a driver in an officiating capacity. Exh. 6/7 required the plaintiff to make his defence within 7 days to this charge and to show cause why he should not be dismissed or punished with any of the lower penalties specified in' Rule 1702‑R (S. R. E. Code). The rule has since been amended. Exh. 6/8 is the plaintiff's defence to the effect that he did not know whether he had been confirmed and that is why on the declaration he had invited a reference to his personal file. Thereafter, without giving to the plaintiff any "opportunity for showing cause against the action proposed to be taken in regard to him" under section 240 (3) of the Constitution Act, toe plaintiff was dismissed as from 25th March 1949 by an order of the Divisional Superintendent, Karachi and the dismissal order was communicated to the plaintiff by the Divisional Personal Officer by letter dated 23rd March 1949, Exh. 6/10. There after the plaintiff gave notice under section 80, C. P. C. and brought this suit.

Exhs. 6/1 to 6/13 were admitted in evidence by consent of the parties. On 22nd May 1950 the parties filed consent issues but at the hearing on 11th November 1952 they agreed that they wished to go to trial only upon the following three issues :‑

(1) Can the suit for a mere declaration succeed

(2) Whether there has been a breach of section 240 (3) Constitution Act rendering the dismissal of the plaintiff void and inoperative.

(3) To what relief if any is the plaintiff entitled

It has not been disputed that the plaintiff held a civil post under the Crown in Pakistan.

On the first issue it has been said for the defendant that the proviso to section 42 of the Specific Relief Act, 1877, applies to this case and that the further relief of damages for breach of contract to continue the plaintiff in service not having been claimed, the Court cannot make the declaration prayed for. The contention however assumes that there had been a dismissal in breach of a contract to continue the plaintiff in service, whereas the relief claimed seeks the declaration in effect that the plaintiff has not been validly dismissed and continues to be in service, It is the plaintiff's case that the purported dismissal of the plaintiff is void and inoperative and that it is no dismissal at all.

The contention also assumes that there was a contract to continue the plaintiff in service. The plaintiff admitted in cross‑examination that he had entered into an agreement of service with the G. I. P. Railway, but the terms of the agree ment have not been proved. Nor has the point been canvassed that the plaintiff must be taken to have been employed by the N. W. Railway on the same terms. The contention also overlooks the provisions of section 240, subsection (1) of the Constitution Act under which, the plaintiff held office during His Majesty's pleasure.

It has been said in Lall's case (A I R 1948 P C 121= P L D 1948 P C 150), the proviso to section 42 of the Specific Relief Act has not been considered, but there is nothing in the report to suggest that it was at all raised before the Privy Council. Having regard to section 240, sub section (1) of the Constitution Act which says that every person who is a member of a civil service of .the Crown or holds any civil post under the Crown holds office during His Majesty's pleasure, the probability is that the point was never raised. The answer to the first issue is in the affirmative.

Reference has been made to the case in A I R 1947 F C 23 which decides that a servant of the Crown in India has the right to maintain a suit for recovery of arrears of pay for the period during which he has served, but it has not been shown that there were any arrears of such pay which the plaintiff could have claimed in this suit. Had this fact been shown, further questions may have arisen for consideration among them being the questions whether such a relief would be a "further relief" within the meaning of the proviso 'to section 42, Specific Relief Act, whether the decisions in, A I R 1947 F C 23 and A I R 1950 Pat. 17 are not in conflict with the Privy Council's decision on the point in Lall's case, and whether an opportunity to amend the plaint ought not to be afforded to the plaintiff even at the stage ok arguments.

On the second issue it has been said for the defendant that it was not necessary in this case to hold an inquiry since there had been a misdeclaration by the plaintiff and Exh. 6/7 which called for his defence had asked him to show cause why he should not be dismissed or punished with allowed penalty and that was a reasonable opportunity within the meaning of subsection (3) of section 240 of the Constitution Act.

The terms in which the Divisional Superintendent, Karachi, addressed the plaintiff in Exh. 6/7 are as follows:‑

"You are hereby required to give your defence for which you are given 7 clear days from the date of receipt of this charge‑sheet to the following charges and to show cause why you should not be dismissed or punished with any of the lower penalties specified in Rule 1702‑R (S.R.E. Code).

You may request to be heard in person and seek the assis tance of another railway employee at such an interview but the granting of this request rests entirely at the discretion of the officer empowered, to award the punishment. A duplicate copy of the charge‑sheet is sent herewith which you can retain."

that no definite conclusion had been arrived at

The point raised for the defendant is covered by the following observation‑of Lord Thankerton in Lall's case (P L D 1948 P C 150 at p.160) :‑

In the opinion of their Lordships, no action is proposed within the meaning of the subsection until a definite conclusion has been come to on the charges, and the actual punish ment to follow is provisionally determined. Prior to that stage, the charges are unproved and the suggested punish ments are merely hypothetical. It is on that stage being reached that the statute gives the civil servant the opportu nity for which subsection (3) makes provision, Their Lordships would only add that they see no difficulty in the statutory opportunity being reasonably afforded at more than one stage. If the civil servant has been through an n enquiry under rule 55, it would not be reasonable that he should ask for a repetition of that stage, if duly carried out but that would not exhaust his statutory right, and he would still be entitled to represent against the punishment proposed as the result of the findings of the enquiry.

No other opportunity of showing cause has been shown to have been given to the plaintiff. It is therefore manifest that: there has been a breach of section 240, subsection 63) of that Constitution Act which renders the order of dismissal void and inoperative.

There will be a decree for the plaintiff against the defen dant declaring that the order passed by the Divisional Superin tendent, Karachi purporting to dismiss the plaintiff from service with effect from 25th March 1949 is void and inoper ative and that the plaintiff remained an employee of the N.‑W. Railway at the date of the suit. The defendant will bear the plaintiff's cost.

K. s.A. Suit decreed.

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