GOVERNMENT OF WEST PAKISTAN (NOW PUNJAB) THROUGH COLLECTOR, BAHAWALPUR vs HAJI MUHAMMAD

1. MUHAMMAD HALEEM, J.-This appeal by special leave is against the judgment dated the 22nd December, 1967 of a Division Bench of the former High Court of West Pakistan, Bahawalpur Circuit, by which R.

5. A. No. 57/64-B. W. P. Was allowed and the suit decreased in terms of the relief sought in the plaint.

2. Leave was granted to consider whether the service of the respondent who was borne on the contingent establishment was distinguishable from Civil Service of a Province within the meaning of Article 177 of the Constitution and if so, whether he was entitled to the Constitutional protection.

3. It was the case of the respondent-plaintiff that he was a "permanent Government servant" and working at the relevant time as Mali in the Government Technical Institute, Bahawalpur. While on duty on the 10th of March, 1959, he was arrested in connection with a theft case but discharged for want of proof on 15-9-1960 by the Magistrate. He was removed from service the same day on the ground that he was absent from duty and that he did not possess character suitable for Government Service. The respondent, it appears, was released on bail during the pendency of the criminal case and he approached the department for being re-instated but not being allowed to resume duty, he filed an appeal on which no action seems to have been taken. The respondent then served a notice on the appellant under section 80 of the Code of Civil Procedure on the 11th of May, 1962 and not getting any response, he filed the suit on 3-9-1962 in the Court of the Administrative Civil Judge, Bahawalpur seeking the relief that the order of removal from service was "void, inoperative and ineffective", and that he was still in service "and entitled to the pay" as from the date he was illegally removed. The ground upon which this relief was sought was that he was not served with a show-cause notice before the impugned order was passed so as to have enabled him to defend himself. There was thus, according to him, a violation of the Constitutional guarantee against removal from service.

4. The appellant took the stand that he was a Government Servant but his service was temporary. It was further averred that he did not disclose about his arrest but sent a "false application" seeking leave for three days. Another application was sent on the third day stating that he had not recovered and that two days' further leave be granted. However, it transpired that he was a dangerous person and was not reliable and that he had been arrested in a theft case. As for his removal from service, it was pleaded that the respondent "was suspended under the Rules and therefore, there was no necessity of any show-cause notice or charge-sheet."

5. Upon the pleadings of the parties the trial Court framed two issues, the first related to the question as to whether the order of removal dated 21-5-1959 was null and void and second to the relief to which he was entitled. I may here point out that the position taken by the Government at the trial was that the respondent was an employee and was "entitled to the rights of a Government employee" which concession is reproduced in para. 7 of the judgment of the trial Court. One other feature which needs mention is that it was the respondent who alone examined himself in support of the stand taken by him. He was not cross-examined. The counsel for the appellant after producing three documents, Exh. P. 1, Exh. P. 2 and Exh. P. 3 closed his side without examining any witness. The trial Court held that there was a violation of the Constitutional guarantee and the issue was accordingly decided in favour of the respondent, but the trial Court only gave the declaration that the order of removal was inoperative and he was still in service. The further declaration as to his being entitled to the pay was withheld.

6. On appeal the learned District Judge, Bahawalpur examined his service book which showed that he was a Beldar from 1-9-1938 to 2-11-1950 and in the grade of Rs. 10-J-24, and that his post was substantive. Thereafter on 2-11-1950 he was shown to have been appointed as Mali in the Govern-- ment Technical Institute in the grade of Rs. 25-J--30, which scale was revised and he drew salary in the new scale, i.e. Rs. 30.1-45. He was therefore, a Class IV employee, an inferior Government Servant vide items Nos. 5 and 6 of Appendixes `A' and `B'; appended to the Bahawalpur State Service Regulations. It was held that there was no protection provided to inferior Government servants as there was no provision like Article 30 which afforded protection to superior Government Servants. He next relied on .The Civil Service Rules, Punjab, Vol. I, Part II which categorized Malis as menials chargeable to contingencies. The tenure being temporary, it was held that he was not entitled to protection under Article 177 as Article 179 of the 1962 Constitution applied to him.

7. Respondent then preferred a second appeal and the learned Judges of the High Court held that Article 179 was not applicable as it was nobody's case that the respondent was employed after the coming into force of the 1962 Constitution pursuant to rules regulating such service. Such provisions did not exist either in the Government of India Act, 1935, 1956 Constitution or Laws (Continuance in Force) Order, 1958, and therefore, the learned District Judge had wrongly considered the case of the respondent on the basis of Article 179 of the 1962 Constitution, which had no application. The same contention as was urged before the learned District Judge was repeated that he was not entitled to a show-cause notice having regard to the Punjab Civil Service Rules and Bahawalpur State Regulation but the contention was repelled on the ground that the Constitutional provision overrides such rules and it was held, relying on the case of Noorul Hassan and another v. The Federation of Pakistan (PLD 1956 SC (Pak.) 331) that the "safeguards provided for the holders of a civil post applied to Class IV employees with full force irrespective of whether they are paid from contingency" As to the contention that Malis are not holders of civil posts the learned Judges relied on the meaning given to the word `Civil Post' by Cornelius, J., as he then was, in Yousaf Ali Khan v. The Province of Punjab PLD 1949 Lah. 219 and held that the respondent was "no doubt the holder of a civil post."

8. It was contended by the learned Assistant Advocate-General that the Malis who are classified as "menials chargeable to contingencies" vide item No. 5 of Appendix No. 2 of the Punjab Civil Service Rules, Vol. I, Part II were excepted from the applicability of the rules as such no show-cause notice was necessary. In this connection the learned Assistant Advocate-General invited our attention to rules 1.2, 1.4, 14.8. He also drew our attention to the fact that rule 14.8 was superseded by the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, which were promulgated on 27-7-1960, and that by Notification No. SO IV (S&GAD) dated 1-6-1964, issued under sub-rule (2) of Rule 1, such rules were not applicable to Govern--ment Servants paid from contingency or borne on work-charge-d establishment. Before dealing with the contention I would presently refer to these rules which were framed under section 241 of the Government of India Act, 1935. Rules 1.2 and 1.4 except the applicability of the rules to persons employed occasionally or are subject to discharge on one month's notice or less. A list of such Government Servants is given in Appendix 2.

9. Rule 14.8 refers to the applicability of the Punjab Civil Service (Punishment and Appeal) Rules to persons serving in the civil capacity in connection with the affairs of the Punjab. Clause 2 of this rule, however, excepts certain class of persons including a person employed temporarily on the terms and conditions that his appointment may be terminated on one month's notice or less. Such persons are again shown to be listed in Appendix 2. The respondent who. Was a Mali was one of them and therefore, he was not entitled to a show --cause notice before being removed.

10. I may here mention that the learned Assistant Advocate-General also invited our attention to rules 2.9, 2.31, 2.44 and 2.46 and to the Baluchistan State Regulation, but the reference was irrelevant as it were the Punjab Civil Service Rules, "Vol. I, Part II which were applicable to the case of the' respondent.

11. Adverting now to the contention it is clear from the record that the respondent served as Beldar from 1-9-1938 to 2-11-1950 which post was shown as substantive in his service book. He was appointed as Mali in the Government Technical Institution 2-11-1950 and was removed from service by order dated 21-5-1959. Not having been re-instated in spite of representations he filed a suit and described himself as a permanent Government Servant. The appellant while conceding that he was a temporary Government Servant did not take the stand that the respondent was being paid from the contingency in the written statement. Therefore, no issue was struck and, no evidence was led on that score. The trial Court on the basis of this con--cession held that there was violation of Article 177 of the 1962 Constitution.' Thereafter it was for the first time that before the learned District Judge it was pleaded that he was being paid from the contingency on which basis the learned District Judge held that his case was covered by Article 179 of the Constitution and as such he was not entitled to the Constitutional protection. It is a well established rule that if a plea of fact is not pleaded no case can be founded on it. This being so, the plea that he was being paid from the contingency has to be ignored and all that is established on the record is that his tenure was temporary but as to what were the terms and conditions of his service, the appellant failed to establish. Therefore, having regard to the period he had served before his removal it cannot be denied that his service though temporary, was for an indefinite period.

12. Therefore, such rights as be enjoyed under the Government of India Act, 1935. He continued to enjoy under the 1956 Constitution which on the promulgation of Martial Law, itself derived its efficacy from the Laws (Continuance in Force) Order, 1958 and on the promulgation of the 1962 Constitution his terms and conditions remained the same by virtue of Article 2340) of the Constitution. Neither in the Government of India Act, 1935 nor in the Constitution of 1956, there was any definite reference to the terms and conditions of temporary employment. Subsection (2) of section 241, however, provided that conditions of service should be B prescribed by rules but the proviso appended to it excepted persons employed temporarily on the terms that their employment may be terminated on one month's notice or less. This saving was repeated in Article 182 of the Constitution of 1956. But in neither of the two Constitutions there was a provision like Article 179. The applicability of this Article was considered in Abdul Majeed Sheikh v. Mushaffe Ahmed (PLD 1965 SC 208) and it was held that "Article 179 is intended to create, in respect of the general power of giving employment in the public service, a new scheme, differing from that in force prior to the 7th June 1962, which requires express authorization and regulation by express rules, in respect of temporary employment, and such a scheme cannot be thought to impose obligations upon persons already in such employment. For such persons, Article 234(1) guaranteed continuance of the terms and conditions under which they were previously serving. The appellant is one of such persons." It was further held in that case that the appellant was entitled by Article 2 of the 1962 Constitution "to enjoy the protection of the law, and to be treated in accordance with law", and that "includes the law as settled by earlier judicial decisions, in particular, decisions given by the Supreme Court of Pakistan."

13. Article 177 of the Constitution does not draw any distinction between a temporary and a permanent employment. Its language is identical with the corresponding provisions of the earlier Constitutions. Therefore, as held by this Court in Noorul Hassan v. The Federation of Pakistan, the Constitutional guarantee will be attracted irrespective of the tenure of office of the person who is removed or dismissed from service. The learned Assistant Advocate General however, next contended that a Mali being a Class IV employee cannot be regarded as being the holder of a Civil Post and in support of this contention he relied on Nartar Singh Jail Singh v. State of Patiala and East Punjab States Union and another (AIR 1955 Pepsu 25) and Lachmi and others v. Military Secretary to the Governor of Bihar and another (AIR 1956 Pat. 398). Before dealing with the cases I would like to refer to the meaning given to the word 'Civil Post' by Cornelius, J., as he then was in Yousaf Ali Khan v. The Province of the Punjab (PLD 1949 Lah. 219) which is as follows : "It does not appear that the personnel of the Civil Supplies Department had been incorporated into a service, and therefore all incumbents of appointments in that department would fall into the second category, viz. Of persons 'holding civil posts under the Crown in India.' I have examined the various definition clauses in the Constitu--tion Act and fail to find any definition of the expression 'civil post'. The expression must therefore, be construed in the ordinary dictionary sense of the words employed, namely, an appointment or an office on the civil side of the administration as distinguished from the military side. There can be no doubt that a post of Sub-Inspector in the Civil Supplies Department of a Provincial Government is such a post. Can it be said that because the post is declared to be temporary. Or the holder thereof is a temporary employee, he is not within the expression 'person holding a civil post under the Crown in India'?"'

14. This definition was followed in S. Mohan Singh v. Patiala and East Punjab States Union, Patiala (AIR 1954 Pepsu 136) and it was thus observed "The term 'Civil Post' is not defined in the Constitution, but it appears to have been used as distinguished from a 'defence post' having regard to Articles 310 and 311 of the Constitution. It has been so held in 'Mangal Sain v. State of Punjab AIR 1952 Pb. 58 in which, Harnam Singh. J., has observed "Now, the expression 'Civil Post' is not defined in the Constitution of India. Reading, however, Articles 310 and 311 together, the conclusion is inescapable that the expression 'Civil Post' as used in Article 311 means -'a post or office on the civil side of the administration' as distinguished from 'post connected with defence'."

15. The same meaning was given to the word 'Civil Post' in Muhammad Mattean Qidwai v. The Governor-General-in-Council (AIR 1953 All. 17). It is as follows "The word 'civil' used before the word 'post' in section 240(1) is clearly meant to distinguish posts in the Defence Forces. The words 'Civil Post' cannot be confined merely to posts which are borne on the cadre of any regularly constituted service. All posts held by any public servant, if the posts did not belong to the Military Depart--ment or the Defence Forces, must be deemed to be civil posts under the Crown."

16. 'In the face of the wide meaning given to the term 'Civil Post' it cannot be denied that the respondent was the holder of such post irrespective of the tenure of his employment and the class to which he belonged. The contention of the learned Assistant Advocate-General is thus without; substance. As to the cases on which reliance was placed I may state that they are distinguishable on facts and are not applicable. In Kartar Singh .Jati Singh v. State of Patiala and East Punjab States Union and another it were the employees who were on contingency staff and their engagement depended on factors such as the availability of funds for which the casual employment was created or the duration of the work for such casual employ--ment or the employee who was actually doing the work was not entitled to pay or wages for the period he did not do such work. In the present case the appellant failed to establish that the respondent was paid from the contingency. On the contrary it was admitted that he was a temporary Government Servant, that is, in regular employment. Therefore, this case is not a precedent for holding that the respondent was not the holder of a civil post. In Lachmi and others v. Military Secretary to the Governor of Bihar and another, the facts were that "Mazdoors" were employed in the ,garden, and according to rule 194(8) of the Treasury Manual their engagement was contractual and as such their service was not held at par with the garden Mazdoors who were Class IV employees. This being the distinction, it has no application.

17. The learned Assistant Advocate-General next relied on Dr. Abdul Hafeez v. Chairman, Municipal Corporation, Lahore and others (PLD 1967 Lah. 1251) but that ,case too is distinguishable for no attempt was made to define the term 'Civil Post.'

18. The last case on which the learned Assistant Advocate-General placed reliance was that of Nawab Din v. Secretary to Government of the Punjab 1971SCMR141 but in that case too the question was whether a person who was in service of the Local Council. Could be said to be holding a civil post in connection with the affairs of a Province and the answer was in negative. This case cannot also lend any assurance to what is contended by the learned Assistant .Advocate-General.

19. The Constitutional guarantee overrides rule 14.9 of the rules cited above and thus the respondent could not have been removed for misconduct without satisfying the requirement of giving him a show-cause notice.

20. The appeal fails and is hereby dismissed with costs.