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Writ Petition No. 934 of 1958, decided on 5th February 1960.
S. 43 Permanent employee‑No difference between discharge on account of inefficiency or misconduct on one month's notice and removal for inefficiency.
There is no difference between a case where a person is given one month's notice of discharge on account of inefficiency or mis conduct and a case where he is removed for such inefficiency or misconduct under section 43 (2) (vi) of the City of Lahore Corporation Act, 1941 without any bar to subsequent employment.
The Corporation has no general power to discharge its perma nent employees. A permanent employee cannot be discharged on one month's notice. The services of a permanent municipal employee are not to be terminated without a reasonable opportu nity of showing cause.
Subsections (3) and (4) of section 43, of the Act only provide the period of notice to the person who is to be discharged and are not by themselves independent provisions empowering the Corporation to dismiss its employees.
According to section 43 (1), a municipal officer can be dis charged (a) during the period of probation and (d) on account of the abolition of the post held by him.
Bye‑law 11- Not applicable in case of discharge of employee.
When an employee has completed ten years, he is entitled to pension even if he is discharged, but his pension would not fall under any class provided in bye‑law 11. This clearly means that the discharge of a permanent employee on one month's notice is not contemplated at all by the bye‑laws.
Invalid pension, superannuation pension, and retiring pension cannot be applied in the case of discharge of an employee.
Rules, 1945, r. 3‑Legal force.
Venkata Rao v. Secretary of State A I R 1937 P C 31 ref.
S. 43- Discharge on ground of abolition of post which in fact was not abolished‑Order of discharge illegal.
Zaheer Abbas for Petitioner.
Mazhar‑ul‑Haq for Respondent.
Dates of hearing : 3rd and 12th November 1959 and 18th January 1960.
Muhammad Din petitioner began working as a blacksmith on daily wages in the Automobile Workshop of the Corporation of the City of Lahore about eighteen years ago. On the 1st of April 1950, he was taken in regular service on monthly basis a6d on the 28th of November 1954, he was confirmed as a blacksmith. On the 31st of July 1958, he received a notice of dis charge from service which is in the following words :‑
"You are hereby informed that your services are no longer required in the Corporation of the City of Lahore on account of the abolition of the post held by you, after 31‑8‑1958.
This may be treated as one month's notice in terms of section 43 (3) (b) of the Corporation Act."
In this writ petition this order of discharge is challenged on the simple ground that the post had in fact not been abolished and that another person has been appointed to that post.
2. On behalf of the Corporation, it is not denied that the post has not been abolished. What had actually happened was that there was a test of the employees of the workshop in order to determine whether they were to be retained in service or not. The report with respect to the petitioner was that while he was all right has a blacksmith, he was old and sick, and it was on this ground that his services had been dispensed with.
3. It may be stated here that there was no enquiry nor any notice to show cause. It was just a notice of discharge on account of the abolition of the post. On behalf of the Corpora tion, it is contended that although the post has not been abolish ed, the Corporation is entitled at any time to discharge its employees on giving them one month's notice and, therefore, the impugned order is valid in law.
4. The relevant section of the Corporation of the City of Lahore Act is section 43 which is reproduced below:‑--
"43. (1) Any municipal officer or servant may be discharged‑
(a) during a period of probation,
(b) if appointed otherwise than under contract to hold a temporary appointment, on the expiration of the period of the appointment,
(c) if engaged on contract, in accordance with the terms of the contract or
(d) on account of the abolition of the post held by him or on account of a reduction in the strength of a cadre of muni cipal' and servants.
(2) The following penalties may, for good and sufficient reasons, be imposed upon any municipal officer or servant‑
(i) Censure ;
(ii) Withholding of increments or promotion, including stoppage at an efficiency bar ;
(iii) Reduction to a lower post or time‑scale, or to lower stage in a time‑scale ;
(iv) Recovery from pay of the whole or part of any pecu niary loss caused to the Corporation by negligence or breach of orders ;
(v) Suspension ;
(vi) Removal from the service of the Corporation which does not disqualify from future employment ;
(vii) Dismissal from the service of the Corporation which ordinarily disqualifies from future employment
Provided that a dismissed municipal officer or servant may be re‑employed by the Corporation with the special sanction of the provincial Government; and
(viii) fine to be deducted from salary:
Provided that this penalty shall not be inflicted upon members of the clerical and ministerial establishments or upon any muni cipal servants with a monthly salary of more than rupees thirty per mensem.
Explanation.‑The penalty of removal may be inflicted upon a municipal officer or servant either for misconduct not suffi ciently grave to justify dismissal, or on account of general unfitness for the duties of his office.
(3) If a municipal officer or servant‑
(a) has been engaged on a written contract, he shall be entitled to notice, or salary in lieu of notice in accordance with the terms of that contract ;
(b) has not been engaged on a written contract, he shall be entitled to one month's notice of the termination of his services or one month's salary in lieu of notice.
(4) Municipal officers and servants discharged during a period of probation or on the expiration of the period of a temporary appointment, whether under contract or not, shall not be entitled to any notice or salary in lieu of notice.
(5) No municipal officer or servant shall be discharged, dis missed or removed from the service of the Corporation by any authority subordinate to that by which he could have been appointed to the post which he holds at the time of the passing of the order."
The contention of learned counsel for the respondent is that under section 43 (3) (b), any employee who has not been engaged on a written contract is entitled only to one month's notice.
5. A reading of section 43 (3) (b) by itself may at first sight create an impression that there is something in the contention of learned counsel for the respondent. This impression is, however, soon dispelled when one reads the whole of section 43. On a consi deration of section 43, it becomes clear that section 43, sub‑I sections (3) and (4) only provide the period of notice to the person) who is to be discharged and are not by themselves independent pro visions empowering the Corporation to dismiss its employees. It will be observed that according to section 43 (1), a municipal officer' can be discharged (a) during the period of probation and (d) one account of the abolition of the post held by him. Now, if an, employee of the Corporation could be discharged at any time; there is no meaning in saying that he can be discharged during the period of probation or on account of the abolition of the post. If the intention of the Legislature was that any employee of the Corporation could be discharged on one month's notice, it would have been sufficient to say so and there would have been no need of specifying the various circumstances under which an employee could be discharged. Then, it will be observed that according to section 43 (2) (vi) removal from the service of the Corporation, although it does riot disqualify from future employment, is also a penalty. Now, what will be the difference between a case where a person is given one month's notice of discharge on account of inefficiency or misconduct and a case where he is removed for C such inefficiency or misconduct under section 43 (2) (vi) without any bar to subsequent employment Obviously there is no differ ence. The servant is being removed on account of incompetence even in the case of discharge and, therefore, it would be an imposition of penalty without compliance with section 43 (2). The pension bye‑laws framed by the Corporation of the City of Lahore would also support the argument that a permanent employee cannot be discharged on one month's notice. According to bye‑law 11, there are four kinds of pensions
(1) compensation pension ;
(2) invalid pension ;
(3) superannuation pension ; and
(4) retiring pension.
So far as compensation pension is concerned, it is clarified in rule (2) that it will apply only to the abolition of a permanent post. The invalid pension, the superannuation pension and the retiring pension cannot be applied in the case of discharge of an employee. But it is conceded on behalf of the Corporation, and whether it was conceded or not, it was quite apparent from the bye‑laws, that when an employee has completed ten years, he is entitled to pension even if he is discharged, but his pension would not fall under any class provided in bye‑law 11. This clearly means that the discharge of a permanent employee on one month's notice is not contemplated at all by the bye‑laws.
6. Reference is next to be made to rule 3 of the Lahore Corporation Service (Punishment and Appeal) Rules. This rule runs:
"No order of reduction, removal, or dismissal shall be passed against the Municipal Officer or servant, unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him."
The rule further supports the argument that the services of a per manent municipal employee are not to be terminated without a reasonable opportunity of showing case. We have referred to this rule only in support of the argument, but we can even rely on H the rule itself. The rule has the force of law on account of section 401 of the City of Lahore Corporation Act. True, there is a possible argument that rights of employees should not be based on mere rules, and the Privy Council judgment in Venkata Rao v. Secretary of State (AIR1937PC 31) may be cited in support of it. It is not necessary to give detailed reasons for saying that that case will not cover the present one because we are basing our conclusions on section 43 of the Act itself and need not rely upon the force of the rule as law at all. But we will simply say that in Venkata Rao v. Secretary of State the authority against whom force of rules as law was being pleaded was the Government which itself had the power to change the rules at any time. Here the rules are framed by the Provincial Government and are binding on the Corporation. The Corporation itself has no power to change the rules.
7. We hold that the Corporation has no general power to discharge its permanent employees. We may point out that the; ground given in the order was that the post was abolished, and the post had not been abolished. The order could be held invalid As even on this ground.
8. This writ petition succeeds, the order of discharge is held to be void and inoperative and we grant a mandamus to the peti tioner directing the respondent to treat the petitioner as the employee of the Corporation.
The petitioner shall have his costs.
K. M. A. Petition accepted.
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