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Petitioner: NASEEM AHMAD VS Respondent: THE SECRETARY, GOVERNMENT OF PAKISTAN, MINISTRY OF INTERIOR, HOME DIVISION
P L D 1960 (W
P L D 1960 (W. P.) Karachi 262
Before B. Z. Kaikaus and Wahiduddin Ahmed, JJ
NASEEM AHMAD‑Petitioner
versus
THE SECRETARY, GOVERNMENT OF PAKISTAN, MINISTRY OF INTERIOR, HOME DIVISION and another‑Respondents
Writ Petition No. 127 of 1958, decided on 15th October 1959.
(a) Government Servant‑Arrears of salary‑Claim depends upon bounty of Crown: [The State of Pakistan v. Mehrajuddin etc. P L D 1959 S C (Pak.) 147 rel,]
(b) Government of India Act, 1935, S. 240‑Government servant‑Dismissed or reduced in rank without complying with S. 240‑May be re‑instated by mandamus‑Bar against enforcement of contract of personal service, varied by S. 240‑Specific Relief Act (1 of 1877), S. 21 (b).
Held, that in case a dismissal or reduction in rank of a Government servant is not in compliance with section 240, Government of India Act, 1935 the High Court can issue a writ of mandamus to re‑instate.
Section 240 was intended to give a real protection to the civil servant so that his services could not be dispensed with without compliance with the two conditions mentioned in that section.
If there be neither a right to salary nor a right of reinstate ment, then there is no protection to the civil servant.
Section 240 does create a legal right in the employee, that is, he cannot be dismissed or removed from service without compliance with the section. But can one conceive of a right for which there is no legal remedy whatsoever? Jurisprudence does not recognise any such right.
When the law prohibits dismissal, it creates a right in the servant to continue in service.
A mandamus lies to enforce the performance of a statutory duty. That duty may be positive or negative. Here is a duty imposed by law that the servant shall not be dismissed without a show‑cause notice. You can call this duty negative if you consider the form in which it is expressed or you can call it positive if you regard the words "shall not dismiss" (or shall not remove from service) as equivalent to "shall retain in service." The Court can direct that the servant shall remain in service till he is dismissed in accordance with law.
A right to be given a proper opportunity to show cause before an order is made may be so vital as to affect the juris diction of the authority concerned to make the order and that in fact is the position with respect to the right of the civil servant to show cause against dismissal granted to him by section 240. In the absence of a show‑cause notice the dismissal is without jurisdiction and void as if it had never taken place. The civil servant does not hold office altogether at pleasure and to the extent that he does not hold it at pleasure the Courts can interfere and order re‑instatement.
Section 240 varies the existing law as to contract of service. It obliges the employer to retain the employee. An order of dismissal in contravention of section 240 is void and non‑existent. When there is a statutory duty on the Government not to remove from service that duty can be enforced by mandamus. [p. 270]I
High Commissioner for India and High Commissioner for Pakistan v. 1. M. Lail P L D 1948 P C 150 ref.
Halsbury's Laws of England, Para. 1271, Vol. IX‑Crown Practice (Hailsham Edition) and M. A. Khaligue v. Pakistan P L D 1957 Dacca 437 dissented from.
Lilawati v. State of Madhya Bharat A I R 1952 Madhya Bharat 105 distinguished and dissented from.
S. M. Sohail for Petitioner.
M. Saeed for Respondents.
Dates of hearing : 26th and 27th February 1959.
JUDGMENT
KAIKAUS, J.‑This judgment will dispose of eighteen Writ Petitions Nos. 127, 128, 138, 141, 142, 172, 215, 267, 401, 404, 559, 621, 622, 711, 733, 840, 841 and 913 of 1958, the point involved in which is common. The petitioners in all these petitions are police officers, some of them permanent and others temporary, who had been serving in the Karachi Police. Sixteen of them were dismissed by some order of the Inspector‑General of Police, Karachi and two of them were reduced in rank. They filed suits and obtained decrees of Civil Courts declaring the orders of their dismissal or reduction to be void and inoperative. These decrees were, either not appealed against or appeals filed against them were dismissed. After obtaining the decrees, the petitioners approached the Inspector‑General of Police, Karachi, and the Ministry of the Interior for their reinstatement, but in spite of persistent efforts, those, who had been dismissed, did not receive a reply at all, and those, who had been reduced, were not re‑instated. In these writ petitions, the petitioner's claim that having obtained the decrees as to their dismissal or reduction being void and inoperative, they are entitled to be re‑instated and to be paid arrears of salary. The petitions are contested on behalf of the Ministry of Interior and the Chief Commissioner of Karachi on the ground that the petitioners have no right either to be reinstated or to be paid arrears of salary.
2. All the impeached orders were passed before 23rd March 1956, and the cases are governed by section 240 of the Govern ment of India Act which was then in force, though it would make little difference if Article 181 of the late Constitution was applicable. The discussion that follows relates to the cases of those who have been dismissed but it will be clear that the conclu sion will govern even cases of reduction in rank.
3. The prayer in these writ petitions is in two parts, the first part relating to re‑instatement and the second to arrears of salary. So far as the second part is concerned the matter is concluded by the judgment of their Lordships of the Supreme Court in three connected cases, The State of Pakistan v Mehrajuddin etc. (P L D 1959 S C (Pak.) 147), where it has been held that for his salary the civil servant depends only on the bounty of the Crown. The above‑mentioned three cases were heard by the Supreme Court during the pendency of these writ petitions and we adjourned the hearing of these petitions a number of times to await the decision of their Lordships for we were told that the decision would settle the fate of these petitions. However we had ultimately to conclude the hearing without the judgment being available,
for my stay in Karachi could not be prolonged any further. Now I have read the judgment of their Lordships and I find that while it negatives the right of a civil servant to salary it does not discuss whether the civil servant is entitled to a reinstatement or not. We are not, therefore, relieved of the duty of giving our own decision on the question of reinstatement.
4. Section 240 of the Government of India Act grants two protections to the civil servant. It provides that he shall not be dismissed either without a notice to show cause or by an authority subordinate to that which appointed him. Obviously the section was intended to give a real protection to the civil servant so that his services could not be dispensed with without compliance with these two conditions. Dismissal includes, as provided in section 277 of the Government of India Act, a removal from service (in Article 181 of the late Constitution the words "removal from service" had been added). But, if there be neither a right to salary nor a right of reinstatement, then what is the protection to the civil servant ? The Government. dismisses a person without notice to show cause. The Court declares the dismissal is illegal, `but the Government refuses still to treat him as an employee. If we say that the Courts cannot help the servant at all, section 240 would be rendered nugatory. Section 240 does create a legal right in the employee, that is, he cannot be dismissed or removed from service without compliance with the section. But can we conceive of a right for which there is no legal remedy whatsoever ? Jurisprudence does not recognise any such right. The remedy may become subsequently barred either by lapse of time or on account of some other event but the remedy must exist initially if there be a legal right in existence. That some legal right is in existence there can be no doubt. The fact that the servant can get a declaratory decree (shows) that some legal right exists, for no declaratory decree can be granted in the absence of a legal right. When the law prohibits dismissal, it creates a right in the servant to continue in service. The master may not pay him. We are not concerned with that matter. But if the law says the servant cannot be dismissed, surely the master can be forced to treat the servant as an employee. If that be not done then how is section 240 to be given effect to ? The section was intended to be a protection against illegal dismissal by the Government and its effectiveness cannot be made dependent on the will and pleasure of the Government. The jurisdiction of the Courts when they grant declaratory decrees of illegal dismissal would, if we hold that the Government can refuse reinstatement, be only an informatory jurisdiction apprising the Government of the illegality of its action and leaving it to the Government to comply or not comply with the law. It is almost impossible to conceive of a law which leaves to the person against whom it issues a mandate to obey or disobey the mandate. What the law enjoins it can enforce. It does not issue vain mandates. If its mandate be disobeyed, it can undo the mischief as far as circumstances permit. Their Lordships of the Privy Council had held in High Commissioner for India v. I. M. Lall (AIR1948PC 121=PLD1948PC150) that section 240 of the Government of India Act qualified the right of the Crown to dismiss its servants at pleasure. Their Lordships said :‑
"Contrasting the provisions of section 96‑B of 1919 with the provisions of section 240 of 1935, their Lordships have no difficulty in holding‑in agreement with both the High Court and the Federal Court‑that the provision as to a reasonable opportunity of showing cause against the action proposed is now put on the same footing as the provision now in subsection (2) of section 240, which was the subject of decision in 64 I A 40 and that it is no longer resting on rules alterable from time to time, but is mandatory and necessarily qualifies the right of the Crown recognised in subsection (1) of section 240 of 1935. The provisions of section 96‑B (1), now reproduced as subsection (2) of section 240 of 1935, and of subsections (2) and (3) of section 240 are prohibitory in form, which is inconsistent with their being merely permissive."
In fact it has never been doubted that section 240 restricts the pleasure of the Crown. But if there be no remedy at all against a dismissal which is not in accord with section 240, what is the restriction on the pleasure of the Crown? What is the qualification of the Crown's right to dismiss ? The pro visions of section 240 are, according to their Lordships, "mandatory" and "prohibitory in form". But how are they mandatory if they can be violated with absolute impunity ?
A mandamus lies to enforce the performance of a statutory duty. That duty may be positive or negative. Here is a duty imposed by law that the servant shall not be dismissed without a show‑cause notice. You can call this duty negative if you consider the form in which it is expressed or you can call it c positive if you regard the words "shall not dismiss" (or shall not remove from service) as equivalent to "shall retain in service." The Court can direct that the servant shall remain in service till he is dismissed in accordance with law. Suppose the civil servant came to Court before actual dismissal because he was threatened with dismissal without notice to show cause. Could not the Court grant an injunction that he shall not be dismissed without an opportunity to show cause ? If such injunction was granted, was not the Government bound to treat him as an employee till there was a dismissal in accordance with law ? There being a statutory prohibition, we can surely grant such an injunction.
6. Suppose the servant with whom we were dealing was one who (as is the case with certain offices held under the late Constitution) held office not during pleasure but during good behaviour and was removed from service without enquiry into misbehaviour. Could the Court not direct a reinstatement ? If we say the Court could not, we leave him entirely without remedy, though it cannot be denied that he has a legal right to continue in service during good behaviour. If, on the other hand, we can direct a reinstatement in his case, why can we not direct a reinstatement if a servant whose removal is subject by law to another condition is removed without compliance with that condition.
7. Para. 1271 of Halsbury Volume IX‑Crown Practice (Hailsham Edition) deals with mandamus which is issued to restore a person to his office. I reproduce the para. below :‑
"A writ of mandamus will lie to compel the restoration of a person to an office or franchise, whether spiritual or temporal, of which he has been wrongfully dispossessed, provided such office or franchise is of a public nature ; as for example to the office of mayor, alderman, recorder, town clerk, burgess or other municipal position, to academic degrees, or to the fellowship of a college where there is no visitor, or to the offices of parish clerk and sexton."
According to this paragraph, mandamus may issue to restore a person wrongfully dispossessed of an office which is of a public nature. That the petitioners are holders of offices cannot be denied for it is argued for the respondent that they "hold office" during pleasure and they are all "officers". When a position carries with it definite functions and duties, it is an office. That the dispossession of office is wrongful also cannot be denied. A mandamus can, therefore, issue.
8. I may point out that in cases where an office can be filled in only by one person, the Courts will feel little hesitation in issuing a mandamus to restore the legal incumbent to his office. Take the cases of an Auditor‑General, a Custodian, an Official Assignee or an Inspector of Railways. There can be only one Auditor‑General, only one Custodian for an area only one Official Assignee and only one Inspector in accordance with law (even if there be some doubt as to interpretation of the relevant provisions let us assume that this is so). If the Court finds that the dismissal of one of these functionaries is illegal and that in law he is still holding his office, it ought to restore him to his office for no other person could act as such and the office cannot be allowed to remain vacant. The Government may feel forced to reinstate him even without a mandamus if the ordinary Civil Court grants a declaration as to the illegality of his dismissal.
9. If we were to hold that unless an injunction has been granted before dismissal we are unable to grant any relief to the civil servant, then every civil servant should, the moment he is enlisted in service, file a suit for an injunction restraining the Government from dismissing him except in accordance with section 240. The fact that he would be entirely without remedy, once the dismissal has taken place, would be a very good ground for granting an injunction.
10. Consider the result of holding that the servant has no remedy. Here are these petitioners who are in the eyes of law still police officers. They were dismissed years ago. The Govern ment refused to treat them as employees and they cannot carry on any other occupation. Under section 10 of the Police Act of 1867, a police officer cannot engage in any other employment and a violation of the provisions of this section will entail not only his dismissal, but would if he engages in trade, be an offence under section 168, P. P. C. Under section 22 of the Police Act, a police officer is considered always to be on duty and under section 23 there are a good many duties which police officers have to perform apart from any orders which they may have to execute and the petitioners could very well be prose cuted under section 29 of the Police Act if they failed to perform any of the duties stated in section 23. At the same time they are as yet subject to all the rules framed under the Police Act (which may, inter‑alia,) prohibit acquisition of property without permission making such acquisition an offence under section 169, P. P. C.) and can be proceeded against for violations thereof. The upshot of all this is that while the petitioners are subject to all the burdens which the law imposes on the servant they are not only not in enjoyment of any privilege associated with a civil servant but are legally debarred from carrying on any business, trade or occupation and incapable of earning a livelihood. And for all this are they to blame? Surely it is not their fault that in their dismissal the law was not complied with.
11. At the same time it has not been explained why the respondent is refusing to give effect to the declaratory decrees. All that the decrees say is that the dismissals being without notice to show cause are void. Cannot the respondent serve notice to show cause before dismissal ? Why should the res pondent insist that the dismissal must be without notice to show cause ?
12. Two cases were cited at the bar. The first is M. A. Khalique v. Pakistan (P L D 1957 Dacca 437). In that case two persons who held appointments as carpenters in the railway had been dismissed without notice to show cause and they had filed petitions claiming reinstatement. The learned Judges who heard the cases found that there was no satisfactory explanation of the inordi nate delay in the filing of the petitions and that the petitions should fail on this ground but they were of the opinion that there was another ground for refusal of mandamus though that ground had not been argued at the bar. The reasons for this opinion will appear from the following extract from the judgment :‑
"This ground is of course by itself sufficient to dispose of these applications but, in the present case, we feel that there is yet another more substantial ground on which these applica tions must fail although this ground was not argued at the gar. Even if the contentions of the petitioners are accepted and it is assumed for the present purposes that the orders terminating the respective services of the petitioners were in violation of the provisions of sections 240 and 241 of the Government of India Act, the relief by way of a mandamus for re‑instatement to office cannot be granted. It is well -settled that although a mandamus may lie to compel restoration of a person to an office or franchise of which he has been wrongly dispossessed, such an order will not issue except in the case of an office or franchise, which is of a public nature. It will certainly not issue in the case of an office which is held at the pleasure of someone else. Thus, as stated in Halsbury's Laws of England, second edition, Volume 9, page 747 ; when, however, the office in question is neither a corporate office nor a permanent one, but one which merely depends upon the will of a fluctuating body, no mandamus will lie to restore or admit thereto.'
To the same effect is the decision in the case of The Queen v. Mayor and Justices of Bodmin L R (1892) 2 Q B D 21, where it was held that since the office of a clerk to the Justices was one which was dismissable at the pleasure of the Justices, a mandamus would not issue, for, even supposing a mandamus did issue for appointing such a clerk, there was nothing to prevent the Justices from dismissing the person so appointed the next day and thus rendering the mandamus futile.
In the present case also, it must not be forgotten that under the very words of section 240, subsection (1) of the Govern ment of India Act, every person who is a member of Civil Service of the Crown in Pakistan or holds any Civil Service under the Crown in Pakistan holds office during His Majesty's pleasure. The only restriction that the Government of India Act, 1935, imposes on this pleasure is that a particular procedure must be followed for dismissal. Thus even if the petitioners were to succeed in these applications, the only order that we could make would be to direct the authorities to act according to law, namely, to deal with the case of the petitioners in accordance with the provisions of sections 240 and 241 of the Government of India Act but we could by no means command the authorities to re‑instate the petitioners because then we would be commanding them to do something which they are not obliged by law to do.
"Another very good reason, why this cannot be done is because by ordering re‑instatement to office, as desired by the rule issued in the present case, we would in effect be granting specific performance of a contract of personal service, which could never have been made either at law or equity, and lastly because, as we have already pointed out, a mandamus will not and should not issue where the chances are of the order of the Court being flouted and rendered infructuous. Even if we were to order re‑instatement of the petitioners, there is, as pointed out in the decision in The Queen v. Mayor and Justices of Bodmin nothing to prevent the Railway autho rities from serving a charge‑sheet upon the petitioners the very next day and dismissing them after giving them an opportunity of showing cause. By a mandamus, we cannot 'presume to tell the authorities what to decide or to substitute our decision for the decision of the authorities. It must be remembered that we can only ask them to perform the duty which is incumbent by law upon them to perform and nothing more."
The learned Judges have held in the first part of their argument that the rule that the Court cannot by mandamus direct the re‑instatement of a person who holds office at pleasure applies to civil servants of Pakistan because the restriction on the pleasure of the Crown relates only to procedure. With all respect I am unable to agree. A right to be given a proper opportunity to show cause before an order is made may be so vital as to affect the jurisdiction of the authority concerned to make the order and that in fact is the position with respect to the right of the civil servant to show cause against dismissal granted to him by section 240. In the absence of a show‑cause notice the dismissal is without jurisdiction and void as if it had never taken place. The civil servant does not hold office altoge ther at pleasure and to the extent that he does not hold it at pleasure the Courts can interfere and order reinstatement. The learned Judges have said there is no statutory duty on the Crown to retain the employee in service. But the section says "shall not be dismissed (or removed from service)" and I am unable to see what difference there is, for the purpose before us, between not removing from service and retaining in service. If the law says "you cannot remove from service" it should mean you must retain in service. It cannot, therefore, be said that there is no statutory duty to retain in service. Another argument employed by the learned Judges is that a contract of personal service cannot be specifically enforced. In the absence of the provision of section 240 this argument would have force. But section 240 varies the existing law as to contract of service. It obliges the employer to retain the employee and as I have already stated the order of dismissal in contravention of section 240 is void and non‑existent. When there is a statutory duty on the Government not to remove from service that duty can be enforced by mandamus.
13. The other case cited is Lilawati v. State of Madhya Bharat (A I R 1952 Madhya Bharat 105). In that case a stenographer had been dismissed after an enquiry. It was contended on her behalf that there was no proper opportunity to defend because concrete charges had not been framed, the enquiry was conducted behind her back, and rule 8 of the Rules of Procedure had been violated. The learned Judges held that the question whether Article 311 of the Constitution of India (which is the Article relating to dismissal) had been violated was a question of fact to be decided with reference to the circumstances of each case. They were not prepared to accept that the Article was violated but even if it was they were not prepared to grant a mandamus for restora tion. The reason of this decision will appear from the following extract from the judgment :‑
"It must not be taken that I am in any way laying down, that in removing, dismissing, or reducing in rank a civil servant, the procedure prescribed by rule 8 of the Civil Service Rules, 1950 need not be followed or that a reasonable oppor tunity of showing cause against action proposed to be taken in regard to a Civil Servant means an inquiry much more elaborate than that contemplated under the said rule. The question, whether an aggrieved civil servant has in fact been…
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