P L D 1962 (W (PLP)

FAIZULLAH KHAN, J ‑‑The petitioner Muhammad Anwar son of Muhammad Sadiq, caste Pathan, resident of village Sultanpur, Tehsil Shakargarh, District Sialkot, was serving as a Telephone Operator Lahore Trunk Exchange since 29th July 1957. He was suspended on the 18th of July 1960, on the allegation that while acting as a Telephone Operator he had been rude to one Colonel Ansari, of the Martial Law Headquarters Lahore, who had booked a trunk call. The charge framed against the petitioner read as follows: ‑ "Gross rudeness to the telephone subscriber". An inquiry was conducted against the petitioner by Mr. A. R. Arshad, Divisional Engineer Trunks Lahore. The inquiring officer in spite of the denial of the charge of rudeness by the petitioner and without examining any witness in support of the charge held the petitioner guilty of the charge of misconduct and ordered his removal from service. His appeal to the General Manager was also unsuccessful, having been dismissed on the 21st of August 1961.

2. The petitioner has filed a writ petition for the issue of a writ of mandamus or any other appropriate writ directing the res pondents Nos. 1 and 2 to re‑instate the petitioner in service. The gravemen of the petition was that the inquiry against him was vitiated for the violation of the statutory rule under which some evidence had to be recorded and the petitioner allowed to cross -examine the witnesses. It was complained that the inquiring officer had not only not examined any witness in support of the charge; he had failed to examine even orally the alleged complainant, namely, Colonel Ansari.

3. The main plea raised by the respondent was that a writ of mandamus did not lie to compel restoration of the petitioner in service. With regard to paragraphs 5 and 6 of the petition, ft was stated as follows: ‑ "That an Inquiry was held under the rules applicable to the petitioner. The complaint was made by one Colonel Ansari, the complainant. This fact is fully supported by the petitioner's written defence submitted in reply to the first charge‑sheet served on him. The record belies the petitioner's allegation that there was nothing to show as to what was said by him. The petitioner acted rudely enough to warrant his removal from service."

4. Mr. Shaukat Husain Qureshi, Advocate, on behalf of the respondents frankly conceded that the Government Servants (Efficiency and Discipline) Rules, 1960 were applicable to the petitioner and that in the instant case there had been a clear violation of rule 6, sub‑rule 5, clause (c) of the said Rules under which the Inquiring officer was bound to hold an oral inquiry at which oral evidence had to be heard and the petitioner was entitled to cross‑examine the witnesses. It was also admitted that there was no complaint in writing by Colonel Ansari nor was he examined in support of the charge. The learned counsel, however, argued on the strength of the decision of the Supreme Court in Pakistan v. Nasim Ahmad (P L D 1961 S C 445) that a writ of mandamus did not lie for the restoration of Government servants to office.

5. Since the decision of the writ petition hinges on the alleged violation of a statutory rule, ft will be convenient to read the relevant provisions of rule 6, namely, clauses (a) to (d) of sub- rule (5) which are to the following effect: ‑‑ "Rule 6 (5). (a) In cases calling for a major penalty the authority having power to impose the penalty shall frame a charge and communi cate is to the accused together with a statement of the allegations on which it is based and of any other circumstances which the authority proposes to take into consideration when passing orders on the case. (b) The authority shall require the accused, within a reason able time, which shall not be less than seven days nor more than fourteen days from the day the charge has been communicated to him, to put in a written defence, stating at the same time whether he desires to be heard in person. (c) If the accused so desires, or if the authority concerned so directs an Inquiry Officer to be appointed under rule 8 shall hold an oral inquiry at which oral evidence shall be heard as to such of the allegations as are not admitted, and the accused shall be entitled to cross‑examine the witnesses against him to give evidence in person and to have such witnesses called for the defence as he may wish, provided that the Inquiry Officer may, for reasons to be recorded in writing, refuse to call a particular evidence. (d) The proceedings shall contain a sufficient record of the evidence and the Inquiry Officer's report of his findings and the grounds thereof."

6. It will be plain from a reading of the language of clause (c) that the inquiring officer has to record oral evidence in support of the charges against an officer, when the charges are not admitted. The words "shall hold an oral inquiry at which oral evidence shall be heard as to such of the allegations as area not admitted"‑clearly require the inquiring officer to examine some evidence. Clause (c) further requires that the accused shall be entitled to cross‑examine the witnesses called in support of the charge. Clause (d) requires that the report of the inquiring officer must be a speaking report and the findings shall be based on some evidence.

7. As already indicated, in the instant case, no evidence was at all called and as such the finding of the inquiring officer is vitiated.

8. Since the proceedings were in clear violation of a statutory rule, we issue a writ of certiorari, setting them aside. The effect of quashment has been noticed in the order of my Lord the Chief Justice, with which I respectfully agree. KAYANI, C. J.‑There is no doubt that the order of the Divisional Engineer, which has resulted in the removal of the petitioner from service, should be quashed in the exercise of certiorari. The petitioner had no opportunity to cross‑examine Colonel Ansari, the complainant; wherefore there was a manifest breach, not only of a statutory rule, but also of a Constitutional provision that a person should have a reasonable opportunity to show cause against his removal. The proceedings, therefore, suffer from an error of law which is patent on the face of the record. Apart from this consideration, the denial of opportunity amounts to a violation of the principles of natural justice, and where such is the case, a writ of certiorari is granted. "A power analogous to that of restraining by means of the orders of prohibition and certiorari any excess of jurisdiction by a person or body exercising judicial or quasi‑judicial functions is the power to restrain, or to quash the decisions of, those persons or bodies if they fail to observe what have been called the rules of natural justice". (Halsbury's Laws of England, III Edition, Vol. 11, paragraph 122). Further in the same paragraph it is stated that "an order of prohibition may be granted to restrain, and an order of certiorari may be granted to bring up and quash the decision of, a person or body exercising judicial or quasi‑judicial functions if he or it fails In its duty to act in good faith, or to listen fairly to both sides, and to give fair opportunity to the parties in the controversy adequately to present their case and to correct or contradict any relevant statement prejudicial to their view". Lord Caldecote, C. J., is reported to have observed in Rex v. Wandsworth Justices, Ex parte, Read ((1942) 1 K B 281, D C at 283), that "a case of denial of natural justice is not a case of want of jurisdiction, but is analogous to It."

2. It is not denied by the learned counsel for the State that certiorari is fully attracted by this case, but it is contended that the petitioner seeks re‑instatement, which requires the grant of a writ of mandamus, and that the Supreme Court has held in Pakistan v. Naseem Ahmad (P L D 1961 S C 445) that a writ of mandamus does not lie to restore a Government servant to office. That was a case of certain police officers who had been wrongly dismissed from service and who had obtained a declaration from the Civil Court that the dismissal was wrongful. Since, notwithstanding such declaration, the Government had not reinstated them, they asked the High Court in the exercise of the writ jurisdiction to direct their re instatement and the payment of arrears of salary. The High Court refused the second prayer in view of the decision of the Supreme Court in the State of Pakistan v. Mehrajuddin (P L D 1959 S C 147), where it was held that the salary of a Government servant was on the bounty of the State, but granted a writ of mandamus for their restoration to office.

3. The Supreme Court, disagreeing with the view that mandamus could be granted, observed: ‑ "Indeed, the authorities cited in Halsbury's Laws of England in support of the proposition of law therein enunciated show that the cases In which the English Courts have invoked this extraordinary power for compelling restoration by writ of mandamus are all cases of offices which are either corporate or elective offices or municipal positions. In England, no Court could possibly compel restoration to office of any public servant in the service of the Crown, for, all such servants of the Crown hold office during the pleasure of the Crown, and no Court in England would presume to command the Crown." "The respondents herein also held office during the pleasure of the State and were removable from office by the State. The fact that sections 240 and 241 of the Government of India Act, 1935, curtailed that pleasure did not alter the nature of the service or imposed any clear duty on the State to retain its servants in office against its will. They only cast a duty on the State not to remove them from service except by following the prescribed procedure. The State was free, however, to dismiss its servants by adopting that procedure. Thus even after an order of restoration it is open to the State to initiate proceedings the very next day for the dismissal of the servant concerned and render the order ineffectual."

4. With regard to the pleasure of the Crown in England and its effect on our laws in Pakistan I propose to make here a few respectful observations which have been encouraged partly by the agreeable manner in which the Supreme Court is reported to have responded to some of my views in the Federation of Pakistan v. Fayyaz Ahmad (P L D 1958 Lah. 500), partly because of the decision in Pakistan v. Muhammad A. Hayat (P L D 1962 S C 28), which marks a definite departure from previous views. In Fayyaz Ahmad's case, although some judgments of the Supreme Court, which were cited before us, favoured a line of thought which was different from mine, since the law had not been expressly laid down by that Court, I ventured "to submit my views uninfluenced by previous judgments in order that the position might be reconsidered". The position has been reconsi dered by a very Full Bench of the Supreme Court, consisting of seven Judges, and although judgments have not been delivered so far, it is understood that the Supreme Court is reacting favourably to my view, rejected by the majority of my brothers in that case, that the discharge of a public servant from service amounts to his removal. I have shown in that case how the King's pleasure was regulated from time to time by the Privy Council and the Queen's Bench according to the exigencies of the situation, an eminent lawyer, like Mr. Manzoor Qadir, described them before the Supreme Court as "imperialist considerations"‑and take the liberty of reproducing a few passages here "Lastly‑though that was, and has always been, the first, the foremost and the most favourite argument of Mr. Mahmud

I address myself to the argument based on subsection (1) of section 240, that service is `during pleasure'. It used to be His Majesty's pleasure, and it has descended now to the President and the Governor, and, in three of these particular cases, to the General Manager. If it were confined to the conventional form in which the Governor is `pleased' to make an order, there would be nothing but pleasure in it. But it is argued that since a person holds office during His Majesty's pleasure, be has no vested right to remain in service. This, in its broad sweep, is a remarkable argument, since the words `Except as expressly provided by this Act' in subsection (1) allow the pleasure of His Majesty to be superseded by the express provisions of subsections (2) and (3),and even the Privy Council, which had manifested such reluctance in Rangachari's case A I R 1937 P C 27 to embarrass the executive Govern ment, observed in I. M. Lail's case P L D 1948 P C 150 that "the provision as to a reasonable opportunity of showing cause against the action proposed is . . mandatory, and necessarily qualifies the right of the Crown recognized in sub section (1) of section 240." "

But even in 1896, where conditions of service were regulated by a Civil Service Act in New South Wales, the Privy Council observed in Gould v. Stuart 1896 A C 575 with respect to a clerk who had been dis missed in a manner not provided by the Act, that the provisions of the Act "which are manifestly intended for the protection and benefit of the officer, are inconsistent with import ing into the contract of service the terra that the Crown may put an end to it at pleasure. In that case, they would be superfluous, useless and delusive. This is, in their Lordships' opinion, an exceptional case, in which it has been deemed for the public good that a civil service should be established under certain regulations with some qualifications of the members of it, and that some restriction should be imposed on the power of the Crown to dismiss them.' " "And let me add, in my humble way, that if pleasure is subject to statutory provisions it is also subject to statutory rules. According to subsection (2) of section 241 condi tions of service `shall' be such as the rules may prescribe, `except as expressly provided by this Act', and the exception only means that where it is provided, as in section 240 (3), that dismissal should be preceded by a reasonable enquiry, then the rules can not dispense with such an enquiry. But if it is argued that although the rules provide for pension, then since they are subject to the pleasure clause in section 240 (1), pension can be withheld if it pleases the Governor‑General, then I must say that the argument gives me the same anxiety as it gave to their Lord ships of the Privy Council in Rangachari's case, only in a less exalted manner. I believe, very respectfully but without hesita tion, that pleasure is subject to statutory provisions and to rules, and that so little of it is now left in substance that it was hardly desirable to retain its lurking shadow in Article 170 of the Constitution. It now amounts to no more than that, if according to the law and the rules a decision is to be taken in regard to a civil servant, it will be the pleasure of the Governor or the President to take that decision. This pleasure he will have both when he appoints and when he dismisses."

5. It is submitted that the decision of the Privy Council in L M. Lail's case, virtually forced "the Crown" to retain Mr. I. M. Lall in service because the Crown had violated a mandatory provi sion of the Constitution, and that, consequently, the observation in D Pakistan v. Naseem Ahmad, that sections 240 and 241 of the Government of India Act did not "impose any clear duty on the State to retain its servants in office against its will" should be read in the light of this clear imitation. Bearing in mind how the Privy Council had reacted differently to different situations, and how different from England the attitude of the Executive Govern ment in Pakistan is to decisions of the Civil Courts, it was possible and reasonable so to interpret sections 240 and 241 of the Govern ment of India Act as to make it incumbent on the Government to reinstate an officer who had been dismissed without being given an opportunity to show cause against his proposed removal. For if the proceedings were void by reason of non‑confirmity with a constitutional provision, and It could be declared that an officer so removed from service continued to be in service, then to tinsis that it should now be the pleasure of the State to reinstate him, not an order of the Court, is to strain pleasure beyond the strain ing point and make the Government look foolish by refusing to respect the decree. In England, when a Court said that to give redress beyond a declaration was the responsibility, "and their Lordships can only trust, will be the pleasure of the Executive Government", the Government treated these observations as an order and gave redress immediately. The attitude of the Executive Government in Pakistan may be illustrated by the case of Mian Rahmat Ali v. The General Manager, N.‑W. R. In Writ Petition No. 359 of 1957, an Assistant Station Master who, having obtained a decree that his dismissal was wrong, had been reinstated, but dismissed again after a proper inquiry. He filed the writ petition for the arrears of salary which were due to him from the date of his first dismissal to the date of reinstatement and obtained an order from the High Court directing the payment of arrears, but as the State counsel submitted that he proposed filing an appeal in the Supreme Court, the order was made subject to the furnish ing of security for the refund of the money to Government. The Supreme Court, following its decision in Mehraj Din's case, set aside the order, and as regards the refund of money, made the following observations: ‑ "We leave it to the railway administration to decide to what extent, if at all, they would enforce by a petition to the High Court, the bond furnished by the respondent as security for restitution, in case there was a decision adverse to the respondent in this Court. The railway administration might well take the view that the bounty of the State having been exercised in favour of the respondent, they should not upset the position, but the matter rests in their discretion."

6. In at least two cases which have come to my notice, the Supreme Court bad refused to allow the Government to repent the exercise of bounty, which had been exercised under the orders of the High Court and might well have been regarded as having been exercised under duress. In North‑Western Railway v. Ali Abid Shah Civil Appeal No. 47 of 1959 (decided on the 17th of December 1959), the appeal was dismissed with the following remarks: ‑ . "If the railway had an equity or justice on its side, we would have perhaps been inclined to examine the case further. This Court's judgment in State of Pakistan v. Mirajuddin does not relieve the Government of all ethical notions or absolve it of its moral obligations, and In coming to the conclusion that we did in that case, we expected that Government would in each case act honestly and conscientiously and not that arrears of salary would be refused en bloc and irrespective of the merits of the individual cases. In the present case the respondent has received a bounty from the State to which he was entitled in equity and the appeal by the department merely detracts from that benevolent spirit."

7. In Pakistan v. Manzoor Husnain Civil Appeal No. 56 of 1959 (decided on the 9th of March 1960), the appeal of Govern ment was dismissed with these remarks "In the present case, we have been told that the bounty of the State has already been exercised in favour of the respondent in deference to the order passed by the High Court and the respondent has received all the arrears of salary which he claimed. No ground has been taken in the petition for special leave which could make out a case for restitution of the bounty of the State, of which the respondent is the recipient."

8. I notice that Mian Rahmat Ali's case, in which restitu tion was left to the discretion of the railway administration, was decided on the 10th of March 1960, a day after the decision in Manzoor Hussain's case. However, when the administration did apply for restitution, and Mian Rahmat Ali relied on the previous decisions of the Supreme Court refusing restitution, I passed the following order :.‑ "Mr. Ataullah Sajjad for Mr. M. B. Zaman, for the peti tioner. Mr. Zahir Abbas for the respondent. He relies on the observation of the Supreme Court that the railway adminis tration, fn its discretion, may not execute the bond so as to obtain a refund of what has been paid to the respondent, and has suggested that we might make a similar `appeal' to the adminis tration. It is futile, however, to make any such suggestion, because already the suggestion made by the Supreme Court has been wasted on it. If it has not shown itself capable of exercising `bounty', it is idle to refer it to more humane considerations. The amount received by the respondent should be refunded." Then there is a further addition to the order: "The above order having been read out to the counsel, Mr. Sajjad asked for an adjournment, so that he might explain to the administration the true object of the order of the Supreme Court. Adjourned to 12‑6‑61."

9. On the 12th June Mr. Sajjad said that "the railway administration has not relented."

10. It will not be over‑modest to apply the word "prepos terous" to the situation which arises when a Civil Court of the State declares that an officer continues to belong to the service and the head of a department of the State refuses to take him back or pay him his salary. Apart from the fact that the observations made by the Supreme Court from time to time denote an expres sion of regret over the abuse of Mehrajuddins' case, there is also a clear indication of a desire to render that decision as harmless as possible by virtually holding that bounty exhausts itself after it has been exercised, even though there was no bounty In its exercise, for it was exercised under duress. In one aspect, there fore, the bounty and pleasure of the State has been controlled.

11. It is to these impossible situations, where the aggrieved officer faces a deadlock, that a writ of mandamus should apply, for since the days of Blackstone, it has invariably been described as "a writ of a most extensive remedial nature"; "its purpose is to supply justice; and accordingly it will issue, to the end that justice may be done, where there is a specific right and no specific legal remedy for enforcing that right". In our case, the petitioner has a right to a declaration that he is still in service, the enquiry held against him being null and void by reason of a grave constitutional defect; yet there is no legal remedy to enforce that right. In the ordinary Civil Court he could obtain a declaration of his right; in certiorari he could obtain an order for the quashment of the proceedings. Having reached one of those two stages, we should either hold that where proceedings are quashed by the grant of certiorari, the logical consequence of restoration to office should follow, or resort to the writ of mandamus in order to resolve a deadlock, to supply justice, to provide a remedy where no remedy exists.

12. But, it is argued, the King will not Issue an order against himself, and that is why the King's Bench did not issue an order of mandamus against the King's servants. In the first place, there is no King's Bench here, and there are no King's servants. We are looking for a King where there is no King. We are fostering a concept of sovereignty which is alien to our genius. We are chasing a will‑o'‑the‑wisp. But if we are chasing a theory, which is on a better footing, then even in the days of despotic Muslim Kings, sovereignty in theory undoubtedly belonged to God, and today, in the context of a republic, sovereignty is a quaint concept. Is it necessary for us to divorce our thoughts from reality and adopt a legal fiction ? Is it not necessary for us to step out of unreality and face the problems presented by our own laws and our own Government ? In the second place, consider how the King's Bench has adapted itself to its surroundings. "The order will not lie against a Secretary of State in his capacity as an agent for the Crown; for in that capacity he is responsible to the Crown alone, and is under no legal duty to a subject. He is acting in such a capacity when carrying out the provisions of a royal warrant." R, v. Secretary of State for War ((1891) 2 Q B 326, (C. A.)) (cited in Halsbury's Laws of England.) 13. "In like manner all other persons acting as servants of the Crown are exempt from control by the Court by means of the order of mandamus, and no order of mandamus can accordingly issue against them to do any act within the scope of the duties discharged by them on behalf of the Crown." R. v. Customs Commissioners ((1836) 5 Ad. and El. 380). 14. "Where, however, Government officials have been constituted agents for carrying out particular duties in relation to subjects, whether by royal charter, statute or common law, so that they are under a legal obligation towards those subjects, an order of mandamus will lie for the enforcement of the duties." (Halsbury, Vol. 11, Third Edition, page 99, where a number of decisions are cited.)

15. These cases draw a distinction between a "servant of the Crown" and a "Government Official", between duties imposed by a "royal warrant" and those, prescribed by "royal charter, statute or common law". Does any such distinction exist in Pakistan ? If it does not, then why do we not make the writ of mandamus more remedial?

16. Fortunately, the recent decision of the Supreme Court in Pakistan v. Muhammad A. Hayat (P L D 1962 S C 28), has further redeemed the legal position, and, if I may respectfully repeat the language of Denning L. J. in Rex v. Northumberland Compensation Appeal Tribunal ((1952) I K B 338) it has somewhat "restored" mandamus "to its rightful position." (That observation was made in respect of certiorari.) Hayat was an engineer in the Oudh and Tirhut Railway in the pay‑scale of Rs. 300‑50‑800, and, after the Partition, retained the same pay scale in Pakistan by an order of Government, dated the 1st of May 1948. On the 30th of May 1958, however, the Government revised this order, with retrospec tive effect, to the disadvantage of Hayat, who, therefore, filed a writ petition in the High Court, challenging the scale of pay fixed by the new order; "which petition succeeded to this extent that the scale of pay up to the 15th of April 1953 was allowed to remain as it had been fixed under the order of the 1st of May 1948." A writ of mandamus, directing the Government "to fix the petitioner's pay from the 1st of April 1953 in accordance with the order of the Governor‑General; dated the 15th of April 1953" was granted. In the Supreme Court it was contended that a writ of mandamus cannot issue against the Government. Repelling this contention, and dismissing the appeal of Government, Mr. Justice Kaikaus observed in the judgment which he wrote for the Bench: "On the fact that in England a mandamus cannot issue to the Crown no argument can be based that it cannot issue to the Government of this country. The constitutional status of the Crown is wholly different from that of the Government of Pakis tan. The Crown of England occupies a unique position. As stated in Dicey's Law of the Constitution (p. 527 of 1950 Edition), it is a fundamental rule of English Law that no action can be brought against the Crown. No process of any kind can be issued by the Courts against the Crown. Another recognised principle is that, `The Crown can do no wrong' The Crown is not respon sible for its acts to any body or authority and no legal right can be said to exist in any person against the Crown." "Nothing of what is stated above applies to the Government of this country. The Government is a creature of law with limited and defined powers. Its acts in relation to the citizens of the State are subject to scrutiny and control by the Courts. It is burdened with legal duties in favour of the citizen which can be enforced in a Court of law. If it acts in excess of its powers the Courts can grant appropriate relief, and if it fails to perform its duties it can be obliged to perform them. Even a Civil Court of the lowest jurisdiction can issue an injunction to the Government to perform the duties imposed on it by law."

17. The effect of this decision is that mandamus can now issue to Government to pay to a Government servant his salary at a certain rate, and it is only logical to say further that mandamus can issue to require Government to pay his salary to a Govern ment servant or to pay arrears of salary. This, it will be recalled, was not countenanced by The State of Pakistan v. Mehrajuddin, where payment of salary was held to be merely an exercise of the bounty of the State, and not the performance of public duty. There is no reference in Hayat's case either to The State of Pakistan v. Mehrajuddin or to Pakistan v. Naseem Ahmad, but if an order requiring the Government to pay salary at a certain rate could be held to have been passed in the proper exercise of the grant of mandamus, the duty to fix a public servant's salary at a certain rate must have been impliedly regarded as a public duty. It would not be logical to say that while the fixation of salary is a public duty, its payment is not a public duty. Now since this result leads to an inconsistent position, it would be reasonable to assume that in Hayat's case the Supreme Court has departed from its previous view. ORDER OF THE COURT

18. We set aside the dismissal of the petitioner and direct that the Government should pay his costs and treat him as though there had never been an inquiry against him. Although no formal order directing reinstatement will be passed, the effect' of our order quashing the proceedings will be to restore the petitioner to his office and emoluments. A. H. Petition allowed.