PROVINCE OF EAST PAKISTAN Versus MEHERUDDIN KHAN AND OTHERS

1. A. S. CHOWDHURY, J.‑ ---This appeal is at the instance of the Province of East Pakistan and directed against a judgment and decree passed by Mr. A. G. Muhammad, District Judge, Pabna on 8‑11‑60 in O. C. Appeal No. 6 of 1959 affirming those of Mr. A. F. S. Rahman, Subordinate Judge, 1st Court, Pabna on 18‑2‑1959 in Title Suit No. 21 of 1958 and it arises in the following circumstances :‑‑-

2. The plaintiff Meheruddin Khan was a Lower Division Clerk in the office of the Communication and Building Department since 1938. His case is that he was absent from office from 4‑9‑52 to 16‑8‑54 on the ground of illness. After prolonged illness he was ultimately declared by a Medical Board on 16‑8‑54 to be permanently and completely incapacitated for further service. He was, however, dismissed from service without being given an opportunity to show cause against the proposed action as required under section 240 (3) of the Government of India tact, 1935. He therefore instituted the present suit for declaration that he was still in service and that the impugned order was null and void.

3. The allegations made in the plaint are denied by the defendant No. 1, the Province of East Pakistan and it is claimed that the order of dismissal was legal and valid.

4. On a consideration of the evidence adduced and the materials produced before it, the trial Court found that "there is nothing on the record nor any evidence has been adduced by the defendant to show that the plaintiff was given any opportunity of showing cause against the action proposed to be taken in regard to him. What I mean to say is that the plaintiff was not given any opportunity to show cause against the proposal for his dismissal".

5. On appeal the learned District Judge observed :---

6. "The order of dismissal Exh. 2, shows that the plaintiff was found guilty of both the charges and was dismissed without any notice calling upon him to show cause against the proposed punishment. It is not also disputed by the defendant that the second notice calling upon the plaintiff to show cause for the proposed punishment was not given and the order of dismissal was passed immediately after the plaintiff was found guilty of the charges framed against him."

7. It is therefore, clear that both Courts have found that the plaintiff was not given any opportunity to show cause as to why he should not be dismissed. This is indeed a violation of a constitutional requirement as laid down in section 240 (3) of the Government of India Act. Subsection (3) of section 240 of the Government of India Act reads as follows :‑

8. "(3) No such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him."

9. The expression `such person' occurring in subsection (3) refers to every person who is a member of the Civil Service as contemplated in subsection (1) of section 240. It is therefore clear that the respondent had a constitutional right to have an opportunity to show cause as to why he should not be dismissed. We are now to consider the effect of the violation of this constitutional provision.

10. Mr. T. H. Khan, learned Senior Government Pleader reads out the following passage from the judgment of the learned District Judge and adopts the arguments advanced by the Government Pleader in that Court to the effect that the relief asked for is a discretionary one

11. "It has been argued by the learne3 Government Pleader that though the order of dismissal was illegal for non compliance of the provisions of section 240 (3) of the Government of India Act, 1935, the Court should not give a declaration as such relief is discretionary and the Court should not grant such discretionary relief when it appears that the plaintiff will derive no benefit from it."

12. The learned District Judge however proceeded to observe that it was not correct to argue as has been done on behalf of the Government that the plaintiff would not be benefited by such a declaration.

13. Mr. Ruhul Islam, learned Advocate for the respondent on the other hand strenuously argues that a constitutional right cannot be dependent on the discretion of a Court and moreover, the discretion has to be exercised reasonably and judicially. We have no hesitation to hold that the point urged by the Government Pleader of Pabna and repeated by the Senior Government Pleader here is of no substance.

14. In the case of the High Commissioner of India and another v. L M. Lall (P L D 1948 P C 150) their Lordships of the Privy Council observed "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 1 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 Government of India Act, 1935. The provisions of section 96‑B. (1), now repro duced as subsection (2) of section 240 of Act of 1935 and of subsections (2) and (3) of section 240 are prohibitory in form, which is inconsistent with their being merely permissive."

15. The Privy Council in that case then declared that the dismissal of the respondent n. M. Lall was void and inoperative and that he remained a member of the Civil Service on the date of the institution of that suit. Their Lordships termed the provision as mandatory and no longer permissive and it was further held that an order passed in violation of the constitutional provision was void. We cannot therefore entertain the argument that the declaration asked for is discretionary for we are of opinion that in case of violation of a constitutional provision the aggrieved person is entitled to the declaration as asked for.1 The view expressed above finds ample support in the case of State of Bihar v. Abdul Majid (A I R 1954 S C 245). In that case the Supreme Court of India observed "that Rule of English law (that civil servants held office at pleasure of the Crown) has not been fully adopted in section 240. Section 240 itself places restrictions and limitations on the exercise of that pleasure and those restrictions must be given effect to. They are imperative and mandatory. It follows therefore that whenever there is a breach of restrictions imposed by the statute by the Government or the Crown the matter is justiciable and the party aggrieved is entitled to suitable relief at the hands of the Court. As pointed out earlier in this judgment, there is no warrant for the proposition that the relief must be limited to the declaration and cannot go beyond it. To the extent that the rule that Government servants hold office during pleasure has been departed from by the statute, the Government servants are entitled to relief like any other person under the ordinary law, and that relief therefore must be regulated by the Code of Civil Procedure."

16. 'I his decision has been followed in a number of other decisions and it is not necessary to burden this judgment by referring to them, for the position in law is well settled now.

17. In the case of Federation of Pakistan v. Mrs. A. V. Isaacs (P L D 1956 S C (Pak.) 431) Munir, C. J. delivering the judgment of our Supreme Court, observed :‑

18. "We are, therefore, quite clear that the order of discharge was an order of dismissal within the meaning of section 240 of the Government of India Act and that if the opportunity required by that section was not given to the respondent in the manner laid down by the Privy Council in Lall's case, the order of dismissal would be void, irrespective of whether the respondent was a permanent or a temporary employee."

19. Our Supreme Court has therefore laid down the law that an order made in violation of the constitutional provision is void. An order which is void must be declared to be so and there is no scope for discretion in the matter.

20. The learned Advocate for the appellant and the respondent have submitted that the following observation as made by the District Judge was unnecessary

21. "The authorities may institute a fresh proceeding against him or may take such action on the certificate of the, Medical Board as thought necessary."

22. We are also of the same opinion as submitted by the learned Advocate. The parties are left to pursue such course as may be permitted by law if they so desire and the scope of such an observation ;being construed as an advice should have .been eliminated.

23. No other point having been pressed before us this appeal fails and is dismissed with costs. The judgment and decree of both the Courts below are affirmed.

24. A. H. KHAN, J.--- ‑I agree.

25. A. E. Appeal dismissed.