' This, Second Appeal under section 100, C. P..C. For Province of West Pakistan through Vice- Chairman. Pakistan Western Railway. Lahore is directed against the judgment and decree of Civil Judge Mirpurkhas dated 31st May 1966 as well as Appellate Judgment of learned District Judge Tharparkar at Mirpurkhas dated 23rd October. 1969 whereby both the Courts below decreed the declaratory suit of respondent Amir Ahmad against the present appellant and held, the termination of his service as Khalasi without show-cause notice and without compliance to Railway Servants (Efficiency and Discipline) Rules 1961 was void and illegal.
2. The undisputed summary of the facts are that respondent was employed as a Khalasi by the appellant under Order No, 226 E/A. P.P. 2 dated 9th October, 1962 at Mirpurkhas with effect from 18th June 1963 in a clear existing vacancy of permanent nature. According to Railway Rules the respondent underwent physical fitness, medical test and was declared fit on 19th September, 1963, he continued to perform duties assigned to him but all of a sudden he was removed from service by the appellant on 26th May, 1964 without any show-cause notice or departmental enquiry and no order of removal from service in writing was given to him nor any reason was assigned for such removal. Representations made by the respondent to the appellant and higher authorities were ignored, a notice was sent by the respondent through his advocate, it was replied by the appellant that the record of the plaintiffs service was not satisfactory. The respondent thereafter filed a declaratory suit in the court of learned Civil Judge who after framing issues and recording necessary evidence produced by both sides and considering documents came to the conclusion that his removal from service by the appellant was illegal and he decreed the suit against the present appellant. The judgment as referred earlier of the learned Civil Judge was confirmed by the First Appellate Court.
3. I have heard Mr. S. Shakir Ali, Advocate for the appellants and Mr. Muhammad Sharif, Advocate for the respondent at length. Counsel for the appellants, in view of the evidence and the documents on record produced by his clients had to concede that no show cause notice whatsoever was issued to the respondent nor any enquiry was held as required by Railway Servants (Efficiency and Discipline) Rules, 1961, nor he could explain as to why appellant had failed to produce as well the original or a copy of appointment order of the respondent dated 9th October 1962 from his record before the learned Civil Judge or before this court. He took the stand however that respondent was employed as a substitute (Khalasi) purely as a temporary measure on local arrangements and he was never made permanent, and that he was 40 years of age therefore he was sent for medical test, with regard to his fitness of age it was however a medical test only with regard to his eyesight. As he was irregular in attendance and was several times absent without authority inspite of warning, for his miss-behavior and carelessness, therefore, the appellant removed him from service which he could do under law without any show-cause notice and he was not appointed against the clear vacancy so as to consider the post as permanent.
4. The contention raised by the appellants with regard to respondent's appointment not against a clear vacancy has been belied before the Trial Court by his own witness Mr. M. Y. Ansari Exh. 28 who in cross-examination had admitted that the appointment was against the clear vacancy, and he failed even to produce appointment order which could only be in appellant's possession, this amounts to non-production of appointment order. Hence trial Court has every right to draw inference against the appellant that the post was of a permanent nature. This fact is further supported by the appellant's sending respondent and getting him medically examined. Exh. 32 is the Medical Certificate of fitness, it does not show that he was sent only for test of the eyesight, it is a certificate of general medical fitness. Counsel for the appellant has failed to show from the Pakistan Railway Establishment Code or other Railway Rules that a substitute, who is supposed to be a temporary appointee, has to undergo any medical fitness examination. Eyesight tests are normally held when a person is appointed on temporary basis which post is likely to continue for a long time with a view to converting it into a permanent post and in this case admittedly the respondent continued in the employment of the appellant from 18th June 1963 to 26th May, 1964, although his initial appointment order was passed on 9th October, 1962, that is to say, he was kept in service for about a year or so and presumably on a waiting list for about one year. Had the appointment of the respondent been on purely temporary basis or on contractual basis for a short period of time, as the Department does occasionally employ such person, then the orders of his appointment, contractual or otherwise should have been produced by the appellants but they failed to do so. It inevitably leads to conclusion that his appointment was against a clear vacancy and of a permanent nature and not on a contractual basis for a short period.
5. There is another difficulty to be met by the appellants with regard to termination of service of the respondent, i. e. Appellants have taken two contradictory pleas. In the first place, it was argued that removal of the respondent required no show cause notice because he was appointed as a substitute but unfortunately for appellant that the order of Discharge Vouchers Exh. 29, which has been accepted before the Trial Court and produced by the appellant himself gave the reason of dismissal as "being absent and misbehavior" and not that he was substitute and could be removed without any show-cause notice. Naturally the appellants cannot be allowed to blow hot and cold in the same breath and to take two contradictory pleas. He cannot get away from his own order, that appellant was removed for misbehavior and being absent which could only be done under Railway Servants (Efficiency and Discipline) Rules, 1961, whereby before the termination of service of an employee, an enquiry is to be held which is mandatory and show cause notices issued and the employee is given chance of representations after the enquiry and before removal, to the higher authorities. Admittedly respondent was deprived of this mandatory right.
6. Now coming to the contention that the appointment of the respondent was a substitute and could be removed at any time without show-cause notice, this argument of the council holds no water because counsel for the respondent referred to an extract of Rule No 3 of Section II of Substitute page 23 of Advance Chapter No, 1 of Personnel Manual (General) wherein appointment, duration and conditions of service of a substitute are enumerated ; as under : "3, Employment of substitutes.----(a) The appointment of substitutes is not permissible in place of absentees on an establishment in which relieving staff is provided except with the sanction of the authority empowered to increase the strength of relieving staff or leave reserve in each case.
(b) Substitutes in place of staff in Class I V service proceeding on leave without pay may be employed provided arrangements cannot be made to relieve them by the leave reserve sanctioned for the purpose. As in such cases no extracost is imposed on the State, the percentage of leave reserve already provided may be exceeded. This course should, however, be resorted to as rarely as possible and it must be recorded in each case that the relieving strength has already been utilized in other vacancies and that no relief is available and the work of the individual concerned cannot be carried on efficiently by re-arrangement of his duties.
(c) Substitutes should not, as far as possible, be engaged against vacancies of less than 22 days duration. When the work of the absentee cannot, however, be carried on by a re-arrangement of duties on the mean at work. Substitutes may be engaged with the sanction of the Divisional Superintendent or the head of the Office provided the creation of or appointment to such posts is within his power. In case where the need of employing substitutes is quite apparent, Divisional Personal Officer or where there is no Divisional Personal Officer, the Assistant Personal Officer, can agree to such employments and list of such appointments made by him shall be put up to Divisional Superintendent periodically for his sanction.
(d) Senior subordinates who are empowered to make appointments of staff in Class.IV service can appoint substitutes against vacancies of less than 22 days in posts for which no relieving staff is provided. A list of such appointments made by them shall be put up to the Divisional Superintendent or the head of Office for his sanction.
(e) In the case of gangmen, no substitutes shall be engaged unless the vacancy is for one month or over. The number of men days lost by the grant of leave without employing substitutes during the quarter (three months) will be made up during the next quarter by the appointment of labour in excess of the sanctioned strength, for the requisite period, if considered necessary.
' Note 1.-The temporary labour estimated on the basis of loss of men-days or for the purpose of renewals and repairs shall not be engaged during the period of "Assumed attendance", i. e.
Between 8th and 14th of a month. No, 4.
' Note 2.-These instructions should not curtail the opportunities for leave which engineering labor would otherwise enjoy."
7. It is evident that first of all substitutes initially are appointed on a vacancy of not less than 22 days duration, and wherein appointing authorities have power to do so to appoint a substitute against a vacancy of less than 22 days in a post for which no relieving staff is provided, sanction of Divisional Superintendent or Head of the Office is required, but admittedly in this case no such order of sanction has been produced by the appellant nor any order that respondent is being appointed for a short period as a substitute. This fact only could be within the knowledge of the appellant and no evidence is led by him in lower court and even today the counsel for the appellant could not make any categorical statement. This would inevitably lead to the fact that appointment of the respondent even as a substitute remains unproved not to say that he continued in service for about a year or so. It has been held by their Lordships of the Supreme Court in the case of Ghulam Sarwar v. Pakistan through General Manager, P.W.R., Lah. (1) and in the case of Abdul Majid Shaikh v. Mushaffe Ahmed and another (2) ; that if a person is appointed to a permanent post and the period of appointment is not specified, the appointment is not temporary even though it is expressed to be temporary and that a person holding as such an appointment is entitled not to be removed from service without being given a reasonable opportunity of show cause against the removal. Not only this it was admitted by the appellant as pointed out earlier that B respondent was removed for misconduct and for being absent, in that case-the respondent has full constitutional protection of being given show cause notice after proper enquiry as laid down by their Lordships. I, therefore uphold concurrent judgments and decree of the courts below and see no force in this appeal and dismiss it with costs.
(1) PLD 1962 SC 142
(2) PLD 1965 SC 208