This second appeal under section 100, C. P. C. purports to challenge the judgment and decree of the learned District Judge, Quetta dated 1-8-1970 as well as the judgment and decree of the learned Administrative Civil Judge, Quetta dated 30th of April 1970, by which the order of the appellant No, 2, dated 15-11-1968, dismissing the respondent Malik Aman, was held as invalid, Moid and ineffective and therefore, set aside, it was further held that he would be deemed to have remained in service of the appellants as Carriage and Wagon Coolie.
2. Brief facts of this case are that respondent Malik Aman was employed as a Coolie in Carriage and Wagon. Department P. W. R. Quetta. In 1966, he was prosecuted for having committed theft of some coal and was tried by the Special Railway Magistrate First Class, Quetta-Kalat Division, who vide his order dated 12-7-1966, convicted him along with some other persons under section 379, P.
P. C. and sentenced each of them . including the respondent to a fine of Rs, 20 each in default to undergo 10 days' R. I. The respondent, however, was eventually removed from service by the Assistant Personnel Officer appellant No, 2 by his order dated 15-11-1968, admittedly without serving any show-cause notice upon him.
3. The respondent challenged his order of removal from service stated above, before the learned Civil Judge, Quetta by filing a declaratory suit, this suit was decreed in his favour by the learned trial Court by its judgment and decree dated 30th of April 1970. An appeal was preferred by the present appellants in the Court of District Judge, Quetta against the above judgment but it was dismissed by the first Appellate Court vide its judgment dated 1-8-1970.
4. I have heard Mr. Muhammad Ahmed Mirza, Advocate-General for the appellants and respondent Malik Aman in person. The main ground of attack against the judgment of the Courts below by the learned Advocate-General is that provisions of Article 177(1)(b) of the Constitution of the Islamic Republic of Pakistan, 1962, were misinterpreted by the two Courts below, as according to him a Government servant who is dismissed or removed from service or reduced in rank on the ground of conduct which has led to his conviction entailing imprisonment, on a criminal charge, is not protected under Article 177(1'(b) and no opportunity of show cause to be given to such civil servants.
5. For proper appreciation of the legal point involved Article 177 of the Constitution is reproduced as under:-- "177.--(1) Subject to this Constitution, a person who is a member of an All-Pakistan Service or of a Civil Service of the Centre or of a Province, or who holds a Civil post in connection with the affairs of the Centre or of a Province-- (a)shall not be dismissed or removed from service, or reduced in rank, by an authority subordinate to that by which he was appointed unless that subordinate authority has been expressly empowered to do so by an authority not so subordinate; and (b)subject to clause (2) of this Article, shall not be dismissed or removed from service, or be reduced in rank, unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken with respect to him.
(2) Paragraph (b) of clause (1) of this Article shall not apply--
(a) where a person is dismissed or removed from service, or reduced in rank, on the ground of conduct which has led to his conviction, entailing imprisonment, on a criminal charge; or
(b) where an authority empowered to dismiss or remove a person from service, or to reduce a person in rank considers that, in the circumstances of the case it is not practicable to give to the person an opportunity of showing cause or that it would be prejudicial to the security of Pakistan for the person to be given such an opportunity."
6. The learned Advocate-General further argued that the respondent being a Railway employee is subjected to the Railway Servants (Efficiency and Discipline) Rules, 1961. He pointed out that, as admittedly the respondent has been tried and convicted by a competent Court under section 379, P. P. C. no show-cause notice to him is necessary under section 8, subsection (2) of 1961-Rules, which provides as under:-- "f(2) Nothing in this rule shall apply-- (a)where a Railway servant is dismissed or removed from service or reduced in rank on the ground of misconduct which has led to a sentence of fine or of imprisonment by a Court, or (b)where the authority is competent to dismiss or remove a person or to reduce him in rank, is satisfied for. reasons to be recorded by that authority, that it is not reasonably practicable to give the accused an opportunity of showing cause."
He further pointed out that a similar provision has been made in West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960 by section 6, subsection (2)(i) which provides:-- "6 (2) Nothing in this rule shall apply-- (0 where the accused is dismissed or removed from service or reduced in rank on the ground of conduct which has led to the imposition upon him of a sentence of fine or imprisonment on a criminal charge."
The learned Advocate-General argued that the rules cited above are in line with Article 177(2)(a) which is an exception to the Constitutional guarantee to the civil servants under Article 177 for issuing of show-cause notice and for adopting necessary procedure under the rules before removal from service.
7. A perusal of the judgments of the Courts below shows that they have laid unnecessary emphasis on Article 177(1)(b) of the Constitution of 1962, without seriously considering clause (2)(a) of Article 177 wherein show-cause notice is not necessary to a Government servant who has been convicted "entailing imprisonment" on a criminal charge. The latter provision to my mind is an exception to the general protection provided by the Constitution to the civil servants. The view taken by the learned Courts below particularly the First Appellate Court to wit, "To take away the protection given by clause 1 of Article 177 it should have been shown that the conviction entailed in imprisonment. If conviction entails fine, the protection given by Article 177(1) would not be taken away. To deprive a person from his constitutional rights given under clause 1 of the Article 177 of the Constitution, it should be proved that he should have been imprisoned on conviction, on criminal charge. Mere fine on conviction would not attract the provision of clause 2 of Article 177 of the Constitution," is erroneous on the face of it.
8. The respondent was tried and convicted under section 379, P. P. C. which is as under : "Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
9. A cursory reading of the above section would show that conviction under Section 379, P. P. C. is punishable with imprisonment or fine or both, this obviously fits in with clause 2(a) of Article 177 of the Constitution where the word "entailing imprisonment" is provided. The word" entail" is defined in Chamber's Twentieth Century Dictionary, 1968 Edition, page 353 as "to bring on as an inevitable consequence. " This word is further defined in the Concise Oxford Dictionary, 1969 Edition, page 404 as "impose (expense, labour, on person) necessitate." I am therefore of the opinion that conviction under section 379, P. P. C. necessitates not only fine but imprisonment as well and in fact in the present case the respondent was sentenced to ten days' R. I. in case of non-payment of fine of Rs,
20. The discretion given to the Courts under section 379, P. P. C. to impose fine or sentence of imprisonment C or both does not necessarily mean that a Government servant cannot be dismissed or removed from service without show-cause notice.
10.Apart from this, the respondent admittedly had filed an appeal against his removal before the Competent Authority which was rejected after due consideration. This is borne out by Annexure "D- 5" addressed by Assistant Personnel Officer to the respondent which is reproduced as under:-- "PAKISTAN WESTERN RAILWAY From: APO/QTA To: Malik Aman C & W Cooly in office, C/HTXR/Quetta.
No, 730-E/2/48 DC(PI). Dated 9-12-68.
Sub:--Your appeal dated Nil against the orders of Removal from service.
Your above appeal has been considered by D. M. E., Quetta and has rejected. (Sd.) for Assistant Personnel Officer, Quetta."
The applicability of the Railway Servants (Efficiency and Discipline) Rules, 1961, has not been challenged before me, the applicability therefore, of section 8, subsection (2) stated above equally applies to the case of the present respondent which disentitles himself under the circumstances from service of show-cause notice under the rules before he is dismissed or removed from service.
11. In view of the above legal position I am of the opinion that the respondent is not entitled to any show-cause notice and is not therefore, protected under Article 177, Clause (1) of the Constitution of 1962. I accept this appeal and therefore, set aside the judgments and decrees of the Courts below stated above. In view of respondent being a coolie I award no costs.