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Petitioner: A. R. AZAR VS Respondent: PAKISTAN THROUGH THE CHAIRMAN, RAILWAY BOARD. P. W. R., LAHORE
1980 P L C (C
1980 P L C (C. S.) 139
[Lahore High Court]
Befbre Abdul Shakurul ,Slam. and Nisur Alunad, JJ
A. R. AZAR
Versus
PAKISTAN THROUGH THE CHAIRMAN, RAILWAY BOARD. P. W. R., LAHORE AND 5 OTHERS
Regular First Appeal No. 2 of 1970, decided on 22nd. December, 1979.
(a) Railway Servants (Efficiency and Discipline) Rules, 1961‑--
‑‑‑ And Government Servants (Further Usefulness in Public Service) Rules, 1962 read with Civil Service Regulations, r. 465‑A, Note (1)‑ Civil servant‑Compulsory retirement‑Termination of service Railway servant applying for leave preparatory to retirement and signing notice for termination of service in accordance with service agreement with Secretary of State for India under threat of compulsory retirement‑Such threat found to be hollow in absence of anything to form basis of action and confidential reports placed on record not calling for such action‑Threat of compulsory retirement not capable of being carried out under relevant rules without a snow cause notice‑Nothing brought on record that there was public interest in dispensing with services of Railway servant having excellent report about his ability, capacity for work and incorruptability of character Civil Service Regulation, r. 465‑A, Note (1) neither applicable nor applied by Government‑Termination of services of Railway servant amounted to compulsory retirement‑Held, provisions of Constitution and law not having been followed, such compulsory retirement wrongful‑Constitution of Pakistan (1962).
Zafar‑ul‑Ahsan v. Republic of Pakistan P L D 1959 Lah. 879; Zafar‑ul -Ahsan v. The Republic of Pakistan P L D 1960 S C 113; Stephenson v. The London Joint Stock Bank Ltd. 20 T L R 8; Addis v. Gramophone Company Ltd. 1909 A C 489; Rubel Bronze & Metal Company Limited and Yes : In re (1918) K B 315 and Abraham Reuben v. The Karachi Municipality A I R 1929 Sind 69 ref:
(b) Contract Act (IX of 1872)‑--
‑‑‑ S. 16‑‑‑Coercion‑‑‑"Undue influence"‑Person finding himself losing his honour or surrendering to demands of another.‑Choice to save honour by surrendering right‑Held, neither free nor voluntary but under compulsion of circumstances‑‑Act not done freely and voluntarily but under pressure impermissible in law‑Does not bind doer.
A gentleman would do anything to avoid public disgrace and dishonour. If he acts in such circumstances, it cannot be said that he is acting freely and voluntarily and not under the compulsion of circumstances and if the latter are nut valid under the law, the action of the person concerned under the threat of illegalities to be committed against him would be neither voluntary nor free nor that would form basis of any legal act. These are matters of essence and basic to all laws, norms, principles of justice and fair dealings between man and man, and man and State.
An act not done freely and voluntarily but under pressure impermissible in law, does not bind the doer. It is elementary law seeking justice that circumstances cannot be such nor created thus that a person finds himself losing his honour or surrendering to the demands of another. If he chooses honour to surrender his right, the choice is obviously neither free nor voluntary but under the compulsion of the circumstances.
Contract by Chitty, 24th Edn., Vol. I; Scott v. Sebright (1886) 12 P D 21 and Loyds Bank v. Bundy 1975 Q B 326 ref.
(c) Civil service
-----Salary of Government servant‑Held, no longer "bounty of State" but a guaranteed right.
Muhammad Nawaz v. Government of Pakistan, through the Secretary Communications and another P L D 1962 Lah. 443 and Pakistan through General Manager P. W. R., Lahore v. Messrs A. V. Issacs P L D 1970 S C 415 rel.
Syed Raza Kazim and A. H. Najfi for Appellant.
Asif Jan, Addl. A.‑G. and Ch. Muhammad Sarwar for Respondents.
Dates of hearing : 24th to 27th November; 17th and 22nd December 1979.
JUDGMENT
ABDUL SHAKURUL SALAM, J.‑This order will dispose of R. F. A. No. 2 of 1970 and R. F. A. No. 5 of 1970 as these challenge the same judgment and decree of the learned Senior Civil Judge, Lahore dated 31‑7‑1969.
2. Relevant facts for the disposal of the aforesaid appeals are as follows :‑
3. Mr. A. R. Azar, plaintiff‑appellant, was born on 10th June, 1907. He took his B. Sc. degree in Civil Engineering from the Edinburgh University in 1929 and after having been selected in All India Competitive Examination conducted by the Federal Public Service Commission joined Indian Railway Service of Engineers in 1931. In due course of time while he was working as Deputy Chief Engineer hr was asked on 19‑5‑1958 to "intimate immediately if you would be prepared to be considered for appointment to the post of Government Inspector of Pakistan Railways on permanent basis. In the event of your reply being in the affirmative and provided, of course, you are selected for the post of Government Inspector of Pakistan Railway, you will have to forego all chances and rights of appointment or promotion to posts in your own cardre as well as to any other post on the Pakistan Railways (Exh. P. 1). Apparently after affirmative answer and selection, the plaintiff was appointed Govern ment Inspector of Pakistan Railways on 8‑7‑1958 and confirmed in that post on 9‑1‑1959. Confidential Report for the year ending on 31‑12‑1959 given by the Chairman of the Railway Board (Exh. D. 10) speaks very highly of the plaintiff as "very intelligent", "reliable", "takes keen interest in his work and is capable of sustained effort", "trustworthy and straight forward", "incorruptible", "can act without guidance", "can lead when the situation demands" etc. etc. He was selected for study abroad and sent to Japan on 27‑2‑1960. On the completion of the study tour, he was appointed Chief Engineer on 23‑7‑1960. He does not seem to have liked the post as he felt that was against the undertaking given to him and would be embarrassing to work under officers whom he had criticized and overruled as Government Inspector of Railways. He protested repeatedly but in vain (Exh. D. 11). He took over as Chief Engineer on 23‑7‑1960. He seems to have expressed some views on the working of the Railways and, then, read a paper in a high powered meeting on 19‑9‑1960 (Exh. P. 6) quite critical of the working of the Engineer Branch of the Railways. Mr. S. B. Azid, Member Engineering of the Railway .Board, whose depart ment had been criticized in connection with an accident at Sibi Station on 12‑10‑1958 by the plaintiff as Government Inspector about which more will be said latter, wrote a D. O. letter on 28‑10‑1960 (Exh. P. 7) to the General Manager critical of his Chief Engineer i.e. the plaintiff. The latter submitted his explanation on 29‑11‑1960 justifying the views expressed in the meeting (Exh. P. 8). At the same time, he tried to get out of the direct administrative hierarchy and volunteered to be appointed to the Sore Depart ment at a lesser salary (by five hundred rupees) as would appear from Confidential Report (Exh. D. 11). His request was acceded to and he was appointed as a Chief Controller of Stores on 7‑2‑1961. However, he was administered a warning all the same about the D. O. explaining his conduct dated 29‑11‑1960 that that amounted to insubordination. The warning is dated 29‑3‑1961. The plaintiff submitted a reply on 6‑6‑1961 that he had expressed his view "in good faith in the interest of the Administration and it is indeed unfortunate that my statement should have been found as tantamount to insubordination which I, at no time, intended."
4. According to the case of plaintiff, he met Mr. G. Moeenuddin, the then Establishment Secretary of the Government of Pakistan in Gymkhana Club in June, 1961 and was apprised that case fot his compulsory retirement was finalized and on query was informed that no show‑cause notice was necessary under C. S. R. 465‑A. It was suggested that if he applied for leave preparatory to retirement his case would be considered. It is stated that in these circumstances the plaintiff applied for leave preparatory to retirement on 26‑8‑1961. He was asked to give a declaration that he would not withdraw his request for permission to retire nor request for resumption of duty which he did on 22‑12‑1961. On 3‑1‑1962, Mr. G. Moeenuddin sent letter (Exh. P. 11) to the plaintiff to the following effect: "1n connection with your conversation with me on the telephone, Government has decided to sanction the leave preparatory to retirement, permissible to you under the rules, as soon as you have signed and returned the enclosed letter." The enclosed letter referred to termination of service on six months' notice under Service Agreement. The plaintiff was informed vide Mr. G. Moeenuddin's letter dated 19‑1‑1962 (Exh. P. 14) "I hope there will be no further delay in the signing for the letter as the Railway Board is becoming somewhat disturber) about this delay." The plaintiff' ride covering letter dated 23‑1‑1962 (Exh. P. 12) in supercession of previous correspondence signed the enclosed letter and sent to the Secretary, Railway Board on 23‑1‑1962 (Exh. P. W. 1/1) which is to the following effect:‑
"I have the honour to state that according to Article 3, of my service agreement with the Secretary of State for India, I can get my services terminated at six months' notice. As I do not desire to serve any longer, I hereby give notice of my intention to get my services terminated with effect from any date in January 1963 or a subsequent date as convenient to the Railway Administration.
(2) I also hereby apply for leave preparatory to retirement for one year from 1st January 1962, or from a subsequent date as convenient to the Railway Administration.
(3) Permission may also kindly be accorded to me to take up other employment in or outside Pakistan during the period of leave and after retirement."
5. On 25‑1‑1962, the plaintiff was "granted Leave Preparatory to Retirement for one year with effect from 1‑2‑1962 subject to verification by Financial Advisor and Chief Accounts Officer. On expiry of leave he will finally retire from Railway Service with effect from 31‑1‑1963." This notification was forwarded "for insertion in Gazette of Pakistan Part I". Eventually the notification No. 99 dated 2‑11‑1962 was inserted in the Gazette of Vilest Pakistan, November 23, 1962 whereby the plaintiff was "granted premature leave preparatory to retirement for one year, with effect from 1st February 1962 to 31st January 1963 under the prescribed Leave Rules as under :‑
(i) Leave on average pay for 4 months or 6 months if a period not less than 2 months is ex‑Pakistan; and
(ii) Leave on half average pay for 8 months or 6 months if not less than 2 months' leave on average pay ex‑Pakistan is availed of."
Prior to the aforesaid Gazette Notification, in reply to the plaintiff's letter, Mr. G. Moeenuddin wrote to the plaintiff on 24th May 1962 (Exh. P. 22) that‑
"Government could have passed orders retiring you compulsorily with immediate effect but in view of your long service, it was decided to permit you to apply for leave and ask for voluntary retirement after the expiry of the leave.
I cannot, of course, object to your applying to the Provincial Government for a revision of the decision to retire you compulsorily.
I would, however, suggest that you should not take advantage of the fact that immediate orders for your retirement were not issued. In case you decide to make a representation, Government would be reluctant to give similar concessions to other officers."
Rules governing compulsory retirement known as Government Servants (Further Usefulness in Public Service) Rules, 1962 were promulgated on 24th May 1962.
6. On 20‑7‑1962, the plaintiff made a representation to the Railway Board (Exh. P. W. 1/ 4) that under rule 2108E (F. R. 69) one has inherent eight to resume duty during L. P'. R. and that he sought to do so, therefore, orders for leis posting may be issued. Request appears to have been repeated when lie was informed on 18‑8‑1962 (Exh. P. W. 1/2) that "your case has been considered very carefully and sympathetically by the Chair man Railway Board but there is no justification to alter the decision already communicated to you vide Secretary's U. O. No. E61‑LE‑1/9‑III dated 31st July 1962. It is regretted that your request to permit you to return to duty cannot be acceded to."
7. The plaintiff made another representation on 30‑10‑1962 to which he was sent the following reply oil 12‑11-1962 (Exh. P. W. 1/3).
"Your attention is drawn to your letter dated 23‑1‑1962 according to which you desired to have your services terminated and retire from any date in January 1963 or a subsequent date as convenient to the Railway Administration. In addition, you requested for permission to take up other employment in or outside Pakistan during the period of leave prior to your retirement which was granted. Consequently, your case is covered by para 2108 of the Pakistan Railway Establishment Code Volume Il according to which you are precluded from with drawing your request for permission to retire and from returning to duty save with the specific consent of the President. Your attention is also drawn to your letter dated 22‑12‑1961 in which you declared that you would not withdraw your request for permission to retire or make a request for return to duty during your L. P. R."
8. Plaintiff appears to have submitted a representation to the Minister of Communication to which he was replied that the matter was under consideration vide Memo. dated 7‑1‑1963 (Exh. P. 15). Then, he made a representation to the President on 9‑8‑1963 (Exh. P. 17) on which he was informed on 11‑12‑1963 (Exh. P. 16) that certain papers were called for from the Railway Board and a reply will be communicated when decision is taken on the representation. On 8th May 1964, he was informed by the Section Officer, Ministry of Communication that "'the petition dated 9‑8‑1963 submitted by you has been withheld time barred. Moreover, you have not complied with the provisions of Part II of the Petition Instructions. The petition is accordingly withheld." After another futile representation to the President of Pakistan, the plaintiff filed a suit on 6‑12‑1965 for declaration that the orders of the Railway Board refusing permission to the plaintiff to resume duty applied for by him on 20‑8‑1962 and 30‑12‑1962 while he was on leave preparatory to retirement were mala fide, void, arbitrary, malicious, inoperative and of no legal effect and that the plaintiff was legally entitled to resume duty and still continues to be member of Railway service. With the permission of the learned trial Court plaint was amended to include relief for arrears of salary to the extent of Rs. 72,800.
9. Numerous issues were framed by the learned trial Court which are to the following effect :‑
(1) Whether the plaint does not disclose any cause of action? O. P. D.
(2) Is the plaint properly stamped? O. P. P.
(3) Whether defendants 2 to 6 are not necessary parties and if they have been wrongly impleaded as such? O. P. D.
(4) Is defendant No. 2 non‑existent and if so what is its effect? O. P. P.
(5) Whether the suit is within time? O. P. P.
(6) Whether the civil Court has no jurisdiction to try the suit? O. P. D.
(7) Whether the suit is vexatious, mala fide and what is its effect? O. P. D.
(7‑A). Whether the suit is barred by res judicata? O. P. D.
(7‑B). Whether the suit is not maintainable in the present form? O. P. D.
(8) Whether the prayer with regard to the recovery of arrears of salary is incompetent'? O. P. P.
(9) Whether the claim with regard to the arrears of salary is barred under the provisions of Order 2, C. P. C. ? O. P. D.
(10) Whether the plaintiff was made to sign notice dated 23‑1‑1962 and make an application for leave preparatory to retirement by the defendants under coercion, undue influence and by inducement or misstatement and what is effect? O. P. P.
(11) If Issue No. 10 is decided in favour of the plaintiff, was he not entitled legally to resume duty during the period of leave preparatory to retirement? O. P. D.
(12) Whether the impugned orders of the Railway Board refusing permis sion to resume duty during the period of leave preparatory to retirement were mala fide, void, arbitrary, malicious, inoperative and of no legal effect ? O. P. P.
(13) Whether the plaintiff could not be legally proceeded against under the rules governing retirement of Government servants who had completed 25 years of service'? O. P. D.
(14) Whether the plaintiff was not legally entitled to reasonable oppor tunity to defend himself during the proceedings of his retirement and what is its effect? O. P. D.
(15) Whether the plaintiff is entitled to the recovery of a sum of Rs. 72,800 as arrears of salary? O. P. P.
(16) Relief.
10. Wasim Muzafar P. W. 1 and Muhammad Amin Sabir, P. W. 2 brought the documents whose, copies have been produced by the plaintiff. The plaintiff himself appeared as P. W. 3 and narrated the circumstances, in which he applied for leave preparatory to retirement and, then, signed the notice dated 23‑1‑1962 for termination of his services and produced various documents. Relevant portion of the testimoney and substance of the documents have been called out from the long narrative and scattered documents which had consumed lot of time because no Paper Book was prepared and have been given in the statement of facts in paragraphs from 1 to 8. On behalf of the defendants, P. W. 1 was produced as D. W. 1 to produce some of the Annual Confidential Reports about the plaintiff. These are Exhs. D. 1 to D. 13.
11. After a lengthy trial, the learned trial Court found in favour of the plaintiff oil the material issues and granted the decree prayed for except that it rejected the claim of the plaintiff for arrears of salary holding that to be bounty of Government. This is vide judgment and decree dated 31‑7‑1969. The plaintiff has filed R. F. A. No. 2 of 1970 claiming that arrears of salary are no bounty of the Government but right of its servants. The Provincial Government of the Punjab has also filed R. F. A. No. 5 of 1970 claiming drat the findings in favour of the plaintiff recorded by the learned trial Court are not sustainable.
12. The learned counsel for the plaintiff, besides supporting the findings of facts with reference to the circumstances narrated in the evidence of the plaintiff in which he had acted, as supported by documents on record, has submitted that the learned trial Court erred in law in not decreeing the plaintiff's suit for arrears of salary. He has placed reliance on Pakistan through General Manager, P. W. R., Lahore v. Messrs A. v. Issacs (P L D 1970 S C 415).
13. Learned counsel for the defendant Government challenging the findings of facts has submitted that the plaintiff had acted voluntarily in applying for leave preparatory to retirement and then in serving a notice for termination of his service in accordance with the service agreement and apply ing for leave preparatory to retirement. There was no question of coercion or undue influence exerted by Mr. G. M. Moeenuddin or any other authority. He placed reliance on Kazi Noor Muhammad v. Pir Abdul Sattar Jan (P L D 1959 Kar. 348), and Mst. Hamida Begum v. Mst. Murad Begum and others (P L D 1975 S C 624). He, secondly, submitted that during the leave preparatory to retirement, the plaintiff had no right to ask for resumption of duty. Therefore, the defendant committed no wrong in not allowing him to resume duty. He, thirdly, submitted that discharge in accordance with a term in contract of service is valid and does not amount to removal or dismissal from service. He placed reliance on The Federation of Pakistan through the General Manager, N. W. Railway, Lahore v. Fayyaz Ahmad (P L D 1958 Lah. 500). Lastly, lie submitted that retirement at the age of 55 years or 25 years service is not a punishment requiring any show‑cause notice. Reliance was placed on Malik Muhammad Khalil v. Government of West Pakistan etc. (P L D 1959 Lah. 229). Referring to the Note under C. S. R. 465‑A, the learned counsel contended that it was for the defendant to decide whether it was in the "public interest" to retire or not. He relied on A. M. Khan Leghari, C. S. P., Member Board o f Revenue, West Pakistan v. Government of Pakistan through Secretary to Government of Pakistan Establishment Division, Rawaipindi and 3 others (P L D 1967 Lah. 227).
14. Crux of the controversy between the parties is whether the plaintiff applied for retirement voluntarily or was forced by the circumstances prevalent and on the advice of the then Establishment Secretary of the Government of Pakistan who obviously held de facto if not de jure power over the services of Pakistan. From education, high office held by the plaintiff and his status in society, it did not appear in the first instance that he acted not voluntarily when he first applied for leave preparatory to retirement on 26‑8‑1961 (Exh. P. 10) and then gave notice for termination of his service after six months on 23‑1‑1962 (Exh. P. W.‑1,/1). It seemed that having applied for retirement and having been granted leave preparatory to retirement, he got second thoughts and applied to resume duty which was declined and then he filed the suit. In these circumstances, it was felt that the plaintiff was not entitled to any decree. But on reflection it occurred as to why the plaintiff who had been given wonderful report of his abilities and especially "in corruptibility" just before his actions, should chose to retire prematurely? It was felt that there might be some truth in what the plaintiff said that he acted under threat of compulsory retirement before which he was not even to be heard and when it was suggested to him by the Establishment Secretary that if he applied for retirement leave the same would be considered, he grasped the opportunity to go with grace. This would have also, probably, depending on the circumstances, amounted to a voluntary act disentitling the plaintiff from any relief. All this demanded deeper appraisal of evidence and clearer conception of what had happened leading to abrupt termination of service of a high Government officer who had rendered thirty years' service with ability and report of "incorruptibility" of character.
15. Before that is done, it may be recapitulated that the plaintiff's service has been terminated on the basis of his letter dated 23‑1‑1962 (Exh. P. W. 1/1) in which he said that "I have the honour to state that according to Article 3 of my service agreement with the Secretary of State for India, I can get my services terminated at six months' notice. As I do riot desire to serve any longer, 1 hereby give notice of my intention to get my services terminated with effect from any date in January 1963 or a subsequent date as convenient to the Railway Administration." It was so stated also by the defendant in reply to plaintiff's representation for resumption of duty vide memo. dated 12‑11‑1962 (Exh. P. W. 1/3). There fore, the case of the parties is that the plaintiff's services were terminated in accordance with the Service Agreement with the Secretary of State for India. Besides that the notice was given by the plaintiff under the said agreement in circumstances when he apprehended compulsory retire ment and was asked to sign the same to avoid that, vide D. O. letter of Mr. G. Moeenuddin (Exh. P. 11) about which more will be said latter, the Service Agreement with the Secretary of State for India itself had gone under a metamorphosis on grant of Independence to India and Pakistan by the Indian Independence Act, 1947. Thereafter, the relationship of the Govern ment servants serving in the two Dominions were regulated by the Constitutional and other legal provisions prevalent in the two Dominions. Reference may be made to the case of Mr. Zafar‑ul‑Ahsan who relied on the similar Service Agreement with the Secretary of State for India as against the Government of Pakistan and failed. The case in, the High Court is reported as Zafar‑ul‑Ahsan v. Republic of Pakistan (P L D 1959 Lah. 879). The argument was not even urged on appeal which failed in the Supreme Court reported as Zafar‑ul‑Ahsan v. The Republic of Pakistan (P L D 1960 S C 113). If the employee could not rely on the said Agreement for his benefit as against the Government, how can the latter rely on the same as against the employee? Therefore, asking of Mr. G. Moeenuddin to sign a notice in accordance with the Service Agreement with the Secretary of State for India and doing that by the plaintiff and acting thereon by the defendant‑Government are all based on misconceptions. Actions under illusions do not furnish foundation for legal consequences. It is obvious enough.
16. At this stage, two of the last submissions of the learned counsel for the defendant may be adverted to viz., that the plaintiff could be…
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