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Petitioner: DR. MUHAMMAD ABDUL LATIF VS Respondent: THE PROVINCE OF EAST PAKISTAN AND OTHERS
P L D 1964 Dacca 647
P L D 1964 Dacca 647
Before Hasan and Sikander Ali, JJ
DR. MUHAMMAD ABDUL LATIF‑Appellant
versus
THE PROVINCE OF EAST PAKISTAN AND OTHERS ---Respondents
Appeal from Original Decree No. 51 of 1959, decided on 18th May 1963.
Government servant ‑ Dismissal from service with retros pective effect‑Held, illegal unless executive authority vested with such powers under rules‑Order of dismissal valid and effective only Jiom date it was passed‑Such order, however, not necessarily bad in toto.
The dismissal with retrospective effect is illegal. This is obviously based on the principle that a person can be deprived of his right including his right to hold an office only in accordance with the rules laying down the terms and conditions under which that right is held and unless it is provided, either expressly or by necessary implication, by or under the authority of a competent Legislature that the said right can be taken away retrospectively, an executive authority cannot for the purpose of such deprivation arrogate to itself the power of taking away the particular right with effect from a date in the past, that is, with retrospective effect. In other words unless so vested with powers under the relevant rules, an order of dismissal passed by an executive authority can only be prospective and not retrospective in operation.
Where the Government servant was on leave with effect from 27‑9‑1954, and the order of his dismissal from service with retrospective effect was passed on 19‑1‑1956:
Held, that the impugned order of dismissal was valid and effective on and from the date on which the order was passed but as purporting to cover the period prior thereto with effect from 27‑9‑1954 it was unwarranted in law and wholly invalid. Such an order of dismissal may be supported to the extent it is found valid and need not be declared bad in toto.
Hemanta Kumar Bhattacharjee v. N. Mukherjee 58 C W N 1 ; Abdul Hamid v. The District School Board, 24 Parganas and others 61 C W N 880; Sudhir Ranjan Halder v. State of West Bengal and another A I R 1961 Cal. 626 ; Satyendra Kumar Dutta v. Administrator, District Board, 24 Parganas 63 C W N 250 and Province of Punjab v. Khan Khaliq Dad Khan P I. D 1953 Lah. 295 ref.
D. C. Bhattacharjee and T. H. Khan for Appellant. Md. Jani Alam with Sultan Ahmad for Respondents.
JUDGMENT SIKANDER ALI, J.‑This appeal is by the plaintiff and arises out of a suit which was instituted by him and has been dismissed by the learned trial Court. The suit was for a declaration that the order dismissing the plaintiff from service is illegal and void as well as for recovery of a specified sum on account of arrears salary and allowances.
2. Briefly stated the material facts are as follows :‑
The plaintiff was appointed Sub‑Assistant Surgeon In joint Bengal in April 1945, on a security bond furnished by him undertaking to serve Government for at least a period of 10 years. At the relevant time he was attached to the Sadar Hospital at Jessore. Owing to his illness he applied for and was granted leave with effect from 27‑9‑54 and thereafter he applied for further extension of the leave whereon he was asked to appear before the Civil Surgeon for medical examination and later on also before ‑the Medical Board which he could not do owing to his ailment. Thereafter in June 1956, he received a letter to the effect that he had been dismissed from service with effect from 26‑9‑54. It is this order of dismissal that he challenged in this suit coupled with a prayer for recovery of arrears of salary and allowances.
3. The suit was contested by the Province of East Pakistan and the Surgeon General, Government of East Pakistan. Their defence in short was that on certain allegations made by the Chairman of the Municipality the plaintiff was transferred from Jessore to the Sadar Hospital at Faridpur. He applied for leave and his case was referred to the Civil Surgeon for his medical examination and thereafter to the Medical Board, but in spite of repeated chances given to him he did not appear before the Medical Board. Accordingly a proceeding was drawn up against him after enquiry in accordance with rules he was dismissed. It was also contended that no leave was ever granted as alleged and that in spite of instruction to submit his bill after depositing Rs. 1,000 in the Treasury in terms of the security bond furnished by him he failed to submit any bill. Ultimately the learned Subordinate Judge dismissed the suit on the finding that the plaintiff was dismissed from service after due enquiry to the proceeding drawn up against him in accordance with the rules prescribed in that behalf. As the arrears of pay and allowances claimed by the plaintiff, he was, in his words "unable to decree the same as I am not in a position to assess the amount for want of necessary materials. It is against this decision that the present appeal is directed.
4. Exh. 1 is the Service Book of the plaintiff showing that he was appointed sometime in April 1945, as alleged and Exh. A is the security bond furnished by hi n for a sum of Rs. 1,000 on the undertaking that he would serve Government at least for a period of 10 years and failing that be liable to pay the said sutra to Government. Exh. C (6) dated 31‑7‑54 is the letter of the Chairman, Jessore Municipality to the Surgeon General, East Bengal, who appears to have been on tour to Jessore at the time, making some complaint against some medical officers in that district, one of them being the plaintiff‑appellant. This complaint appears to have been referred to the Civil Surgeon for report and on receipt of the latter's report the plaintiff appears to have been transferred to Faridpur. On receipt of this letter the plaintiff by his letter, Exh. 2 (b) dated 30‑9‑54 addressed to the Surgeon General, East Bengal, applied for leave for four months with effect from 27‑9‑54. It appears from Exh. 3 (a) dated 13‑11‑54 which is a letter from the Deputy Surgeon, East Bengal, to the plaintiff asking him to furnish medical certificate from the Civil Surgeon which was done as is shown by Exh. B dated 25‑11‑54. In this certificate granted by the Civil Surgeon leave for a period of 2 months with effect from the date on which the certificate was granted was recommended. It appears that on receipt of the certificate the Deputy Surgeon General enquired of the Civil Surgeon as to how the period prior to the date from which the leave was recommended by him was to be treated. Exh. 2 (C) is the letter from the plaintiff to the Surgeon General dated 22‑1‑55 whereby the plaintiff asked for a further extension of leave for three months more. This was followed by the letter Exh. 3 by which the Deputy Surgeon General informed the Civil Surgeon, Faridpur, that on plaintiff's joining Faridpur on the expiry of his leave he would be placed at the Sadar Hospital on supernumerary duty. Thereafter presumably on receipt of the letter 2 (C) mentioned above the Deputy Surgeon General addressed the letter Exh. C dated 26‑2‑55 to the plaintiff directing him to appear before the Medical Board for his examination in response to which the plaintiff excused himself by his letter Exh. 2 (a) dated 3rd March 1955, saying that he was physically unfit to appear before the said Board. Thereupon the Deputy Surgeon General addressed the Civil Surgeon, Jessore, by his letter Exh. C (4) dated 25‑3‑55 asking the latter to examine the plaintiff carefully and report whether he was fit to appear before the Board. The Civil Surgeon accordingly examined the plaintiff and wrote to the Surgeon General as per his letter Exh. 3 (b) dated 1‑4‑55 saying that he found a mark on the person of the plaintiff indicating a recent absess but certifying that he was then quite fit to appear before the Medical Board. On receipt of this intimation the Deputy Surgeon General by his letter dated 21‑7‑55 wrote to the plaintiff saying that the last chance was being given to him to appear before the Medical Board, in response to which the plaintiff by his letter Exh. C (2) dated 6‑8‑55 tendered resignation of his post. This was followed by the proceedings Exh. F dated 13‑9‑55 drawn up against the plaintiff and the Civil Surgeon, Jessore, was appointed the Enquiry Officer. The plaintiff appeared before the Civil Surgeon in that connection and submitted his defence orally. It also appears that he declined to put in any written defence or any further defence otherwise. The Civil Surgeon thereafter submitted his report which contained a factual statement of the defence taken by the plaintiff. As the Civil Surgeon did not give his own views he appears to have as requested subsequently done so by his report in which ‑he opined inter alia that it was no use retaining an unwilling officer in Government service. On receipt of this, the Deputy Surgeon General by his letter Exh. C (7) dated 19‑12‑55 called upon the plaintiff why as a result of the aforesaid proceeding drawn up against him he should not be dismissed from service. To this the plaintiff merely reiterated what he represented earlier regarding his ailment and physical inability and concluded with a request to discharge him from service on resignation and allow him to pay the security money in instalments of Rs. 20 per month. This was not accepted and the plaintiff was dismissed from service by the order Exh. 3 (d) dated 19‑1‑56.
5. As is clear from the foregoing facts, the dismissal of the plaintiff took place in culmination of a proper proceeding drawn up against him. So the present suit is limited to the investi gation as to the legality of the order that is whether the prescribed rules and formalities had been duly observed in the enquiry instituted against the appellant. The first point taken in that behalf before us by Mr. Bhattacharjee, the learned Advocate appearing for the appellant, is that the order of dis missal was made ex parte, that is behind the back of the plaintiff who was not furnished with any copy of the proceeding drawn up against him and that no opportunity was afforded to him to show cause against the action taken in the proceeding. It, however, transpires from the evidence on record that the office of the Surgeon General forwarded a copy of the proceeding to the plaintiff direct. There is, of course, no evidence to show whether the plaintiff actually received it, but nothing whatsoever appears to turn on this. The said office also forwarded a copy of the proceeding to the Civil Surgeon who was appointed the Enquiry Officer. The act of forwarding a copy of the proceeding to the officer proceeded against is usually performed by the Enquiry Officer and that must have been done in this instance also, as is evident from the fact that the appellant actually appeared before him and submitted his defence orally. That is not disputed either. In view of this Mr. Bhattacharjee found it difficult to support the first part of his contention that the proceeding was taken behind the back of the plaintiff‑appellant. He, however, tried to contend though feebly that no opportunity was given against the proposed action finally taken in the matter but the hollowness of that argu ment is exposed by the letter Exh. C (7) whereby the plaintiff was asked to show cause as to why he should not be dismissed from Government service as well as his reply thereto to the effect that he might be discharged from service on resignation. There is, therefore, no substance in either that the proceeding was taken behind the back of the plaintiff‑appellant or that he had not any of the opportunities prescribed under the rules to defend himself or place whatever he might have had to say before the proper authorities including the Enquiry Officer.
6. The next contention urged by Mr. Bhattacharjee, however, is that the order of dismissal is defective at least in one respect, namely, the date with effect from which it is purported to have been given effect, that is 27‑9‑54. It has been argued in the first place that dismissal with retrospective effect is ultra vires and void and secondly that a period of 4 months from the said date was covered by the leave applied for in the first instance and granted. We propose to deal with the second branch of argu ment first. In this behalf the learned Advocate relied upon Exh. 3 which is a letter dated sometime about the 19th of January 1955, addressed by the Surgeon General to the Civil Surgeon, Faridpur, to the effect that the plaintiff on his joining Faridpur should be placed on supernumerary duty at the Sadar Hospital. In the endorsement forwarding a copy of this letter to the Civil Surgeon, Jessore, for information the latter was requested to direct the plaintiff to join his new post at the Sadar Hospital, Faridpur, "on the expiry of his leave as prayed for". A copy of it appears to have been forwarded to the plaintiff as well direct and the endorsement in that behalf is as follows:‑--
"Copy forwarded to Dr. Abdul Latif on leave for infor mation and necessary action."
Another document in this connection is the letter Exh. C dated 26‑2‑55 addressed by the Deputy Surgeon General to the appellant requiring him to appear before the Medical Board in accordance with the rules. A copy of this letter was forwarded to the Professor of Clinical Medicine, Medical College, Dacca, for information and necessary action. The endorsement forwarding this copy ended with the sentence "Dr. Latif has been on leave from 27‑9‑54". It is true that no copy of the formal order granting leave to the plaintiff is there on the record, but from the statement, referred to above, there can be no manner of doubt that the plaintiff must have been granted leave or was at any rate treated as being on leave by the competent authority, i.e., the department, on the basis of his first application. It may be noted that an officer from the office of the Surgeon General was examined in this case and he too did not challenge the aforesaid statement as to leave appearing in the letters issued from his office by saying that it was a mistake. In this view of the matter,' therefore, the dismissal of the plaintiff with effect from 27‑9‑54 or for that matter from any date falling within the period covered by his first application is untenable.
7. We now pass on to the second branch of Mr.Bhattacharjee's argument questioning the legality of dismissal with restrospective effect. The proposition put forward by him in this connection is that although an appropriate authority is competent to dismiss an officer from service in accordance with the procedure prescribed under the rules, there is no provision either in law or in rules authorising such dismissal with retros pective effect and as such the impugned order in the instant case is unwarranted and therefore illegal. In support of this he has cited a number of authorities, to wit the case of Hemanta Kumar Bhattacharjee v. N. Mukherjee (58 C W N 1) the case of Abdul Hamid v. The District School Board, 24 Parganas and others (61 C W N 880), the case of Sudhir Ranjan Halder v. State of West Bengal and another (A I R 1961 Cal. 626) Satyendra Kumar Dutta v. Administrator, District Board, 24 Pargunas (63 C W N 250) and the case of the Province of Punjab v. Khan Khaliq Dad Khan (P L D 1953 Lah. 295). In the first mentioned case reported in 58 C W N it has been held that suspension with retrospective effect is an impossible notion and is really a contradiction in terms. In coming to this conclusion it has been observed :‑---
"If the suspending authority had the powers of Legislature, he could undoubtedly have said that although an employee might have actually worked during an antecedent period he would be deemed not to have worked and to have been under suspension or although a person might have actually occupied a position in the past, he would be deemed not to have occupied it and to have been bereft of the privileges attaching thereto. But the Government of India not being a Legislature and having given itself by the rules no more power than a power to suspend the ordinary meaning of `suspension' must apply to the construction of the power. Any order made must be within the limits of the power to suspend and those limits must be taken to be such as are possible under the meaning of the word `suspension'. If so, an order of suspension with retrospective effect under the authority of Rule 2 is impossible in the nature of things."
Following this Bose, J., in dealing with an application for writ in the nature of Certiorari in the case of Abdul Hamid v. The District School Board, 24 Parganas, upheld the contention that the disputed order of discharge was ex facie bad inasmuch as it purported to dismiss the petitioner with retrospective effect. The same view has been taken in the case of Styendra Kumar Dutta v. Administrator, District Board, 24 Parganas, as was in the case of Sudhir Ranjan Halder v. State of West Bengal and another, wherein the relevant proposition has been laid down as follows :‑---
"The order of dismissal was also faulty. Dismissal was directed to take effect not from the date of the order, which was dated August 13, 1948, but from the date of the order of suspension, dated November 6, 1947. This is what appears from Exh. 2 (b), the order of dismissal as communicated to the appellant. Exh. A (4), the original order, does not contain the words with effect from the date of suspension.
Suspension or dismissal or removal from service with retrospective effect has always been condemned by the Court as illegal and invalid . . . . ."
Similarly a Division Bench of the Lahore High Court in the case of The Province of Punjab v. Khan Khaliq Dad Khan, has held that Government has no authority to dismiss an officer retrospectively. It may be worthwhile to quote the relevant passage which is as follows :‑-
"We have been referring to the order of dismissal passed by the Punjab Government which purports to take effect from a previous date without comment. Let it not be understood that we accept the authority of the Government to pass orders with retrospective effect. It is only the Legislature that can give retrospective effect to what it ordains. The Government have only power to dismiss and a power to dismiss does not imply a power to say `a dismissal shall be deemed to have taken place on such and such a date'. At least in the absence of an authority from the Legislature, express or necessarily intended, no such power can exist."
8. Thus the proposition that dismissal with retrospective effect is illegal appears to be firmly established. This is obviously based on the principle that a person can be deprived of his right including his right to hold an office only in accordance with the rules laying down the terms and conditions under which that right is held and unless it is provided, either expressly or by necessary implication, by or under the authority of a competent Legislature that the said right can be taken away retrospectively, an executive authority cannot for the purpose of such deprivation arrogate to itself the power of taking away the particular right with effect from a date in the past, that is, with retrospective effect. In other words unless so vested with powers under the relevant rules, an order of dismissal passed by an executive authority can only be prospective and not retrospective in operation. Mr. A. B. Mahmud Hussain, the learned Government Pleader, appearing on behalf of the respondent, has, however, referred us to Rule 302 of the East Bengal Service Rules, Part I, and argued that since the proceeding against the appellant was drawn up and the order of his dismissal made for "unauthorised absence", (vide Exh. 3 (d)), the said order should in the fitness of things take effect from the date when such absence commenced and in this view of the matter the authority in the present instance was perfectly justified in giving retrospective effect to the impugned order. The substance of his argument appears to be that the power to dismiss carries with it the power to dismiss with effect from any date past, present or future and therefore in the absence of specific limitation on the power, an authority competent to dismiss can make an order of dismissal with retrospective effect. We are unable to subscribe to this argument for the simple reason that the question is not whether there is any rule or provision debarring the authority concerned from dismissing an officer with retrospective effect but whether there is any positive rule or provision empowering the authority to take such action. As there is no such rule or provision, as has already been made clear above, dismissal with retrospective effect cannot, in our opinion, be supported. As regards the rule cited by the learned Advocate, suffice to observe that it (sic) at as the exceptions in which an interruption in the service of an officer does not entail forfeiture of his past service and thus contains nothing that might lend support to his contention, referred to above. A question was raised that if the order of dismissal fn this case or any case of a similar nature were given (sic) which it was passed and not retrospectively, that might have the effect of converting the period of "unauthorised absence" to "duty" inasmuch as the said period dates prior to the dismissal. On a perusal of the relevant rules including the one mentioned above, however, we find no basis for this apprehension. The said rules, as far as we can see, have made necessary provision for contingencies of the nature under consideration and it is open thereunder to the authority concerned to treat the period involved as unauthorised absence without leave or absence without leave committed to extraordinary leave without pay with the consequences legally following therefrom. We accordingly reject the contention urged by the learned Senior Government Pleader and hold that the impugned order of dismissal is valid and effective on and from the date on which the said order was passed but as purporting to cover the period prior thereto with effect from the 27‑9‑54 is unwarranted in law and wholly invalid. The decree may be modified accordingly.
9. In this connection a question no doubt arises as to whether an order of dismissal which is bad in the circumstances discussed above can be supported in part or should be treated as bad as a whole. In two of the cases referred to above, namely, the case of Abdul Hamid v. The District School Board, 24 Parganas and others and the case of Sudhir Ranjan Haider v. State of West Bengal and another, the view taken is that such an order must stand or fall in toto. Certain reasons have no doubt been given in the latter but with due respect to the learned Judges, these appear to be rather more speculative or academic than real. Moreover, in Hemanta Kumar Bhattacharjee v. S. N. Mukherjee, a different view appears to have been taken and it has been held (vide page 10 of the report) that the order of suspension as purporting to cover the period anterior to the date of the order was unwarranted by law and wholly invalid. It was, however, held to be valid with respect to the subsequent period. The order made in another Calcutta case, i.e., Akloo v. Chief Executive Officer, Corporation, Calcutta (as referred to and discussed in Sudhir Ranjan Halder v. State of West Bengal, cited above) also appears to be founded on this principle. So in view of this and regard also being had to the submission made by Mr. Bhatta charjee that his client will be satisfied with a declaration to the effect that the order of his dismissal covering the period prior to the date of that order is bad, we do not enter into a detailed discussion of the aforesaid question and hold for our present purpose that an order of dismissal of the nature under con sideration may be supported to the extent it is found valid and need not be declared bad in toto.
10. As to the arrears of pay and allowances claimed by the plaintiff and dismissed by the learned trial Court no grievance has in fact been made before us and we for ourselves too are of the opinion that the same has been rightly dismissed; not of course for the reason given by the learned Subordinate Judge, i.e., want of materials to assess the amount but because that is untenable.
11. It also appears from the concluding sentence of the order that the learned Subordinate Judge has expressed the hope that the defendants would give the plaintiff his legitimate dues after the plaintiff submits a bill for the same deducting the amount of Rs. 1,000 due from him to the defendants on account of the bond money. We, however, do not associate ourselves with this and leave the matter for settlement by the parties in the way they think proper.
12. In the end we dismiss the appeal and affirm the judgment and decree appealed from, subject to the modification that the disputed order to the extent it purports…
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