P L D 1955 Sind 285 (PLP)

VELLANI, J.--‑These appeals raise the question of the validity of the following order of 30th December, 1952 made by ` the Inspector‑General of Police :‑ "The work of the following temporary Inspectors, Sub Inspectors and Assistant Sub‑Inspectors having been found unsatisfactory, their services are dispensed with with effect from 31st December, 1952." The 7 suits out of which these appeals arise were consolidated and Lari J. by decrees declared that the order of the Inspector‑General of Police was void and the respondents continued to be in service. Of all the respondents only respondent Habib Ahmed in First Appeal No. 44 of 1954 and respondent Akram Abbas in First Appeal No. 47 of 1954 have been held to be permanent. Habib Ahmed's name was placed second in selection list of 8 Inspectors in Sind Police who were to be considered for appointment as Inspectors of Police when vacancies occurred. He was then appointed as officiating Inspector of Police vice Hardasmal on leave and posted as an Additional Motor Vehicle Inspector at Karachi. Upon the separation of Karachi from Sind he was transferred to Karachi and was placed in the unarmed Branch. He was then transferred to the C. I. D. Branch. The learned trial judge held that as Habib Ahmed had been selected for permanent appoint ment in Sind Police and Hardasmal for whom he officiated did not return from India, Habib Ahmed became the holder of a clear vacancy on the permanent cadre of Police Inspectors in Sind Police Force and that when he was trans ferred to Karachi he was not appointed in any officiating or temporary capacity. This is not a case of a person appointed on probation for a fixed period in a clear or permanent vacancy. Habib Ahmed was to be considered for appointment as Inspector when vacancies occurred and in order to succeed, he must establish at least that upon a vacancy occurring he was considered for appointment as Inspector and appointed as such. This he has failed to do and the case of Wechsler v. Johnston and Hoffman mentioned by Barwell and Kar at page 66 of Volume I of their work on "Master and Servant", does not assist his case. Akram Abbas is shown to have been transferred from Tharparkar District in Sind to Karachi and to have been posted at the Central Police Station, Karachi. The learned trial Judge found that there was nothing in the order of transfer or posting to show that Akram Abbas was either temporary or officiating but para. 2 of his plaint states that he was appointed as an officiating Sub‑Inspector of Police in Tharparkar, so that he too in order to succeed would have to prove that there was an order appointing him as a permanent Sub‑Inspector. The appellant by its written statement set up the case that Akram Abbas was appointed as a temporary Sub‑Inspector of Police in Karachi and that there was no permanent police cadre at Karachi at the time. The order of transfer or posting must be read in the light of the plaint and the written statement which contains the case of the parties and it is common ground that the appointment as Sub‑Inspector in Sind of Akram Abbas was in an officiating capacity. Thereafter it was for Akram Abbas to prove his appointment as a permanent Sub‑Inspector of Police. The case in A I R 1949 F. C. 50 supports this view. The case of all the respondents must be considered on the basis that they were temporary officers of the subordinate ranks of the Karachi Police. Section 243 of Government of India Act 1935 says in effect that notwithstanding anything in section 240, 241 and 242 of the Act, the conditions of service of the subordinate ranks of the various police forces shall be such as may be determined by or under the Acts relating to those forces respectively. The Act which applies to the Karachi Police is the Bombay District Police Act 1890. Subsection (1) of section 29 of that Act says that the Provincial Government or any officer authorised by subsection (3) may suspend, reduce or dismiss any member of the subordinate ranks of the police force whom he shall think cruel, perverse, remiss or negligent in the discharge of his duty or unfit for the same while subsection (3) says that the Inspector‑General of Police shall have authority to punish any member of subordinate ranks of the police force of and below the grade of inspector under subsection (1) but the exercise of the power is to be subject always to such rules and orders as may be made by the Provincial Government in that behalf. On 7th February, 1931 the Sind Governor in exercise of powers conferred by section 4 of the Bombay District Police Act by a notification directed that all rules, orders and notifica tions relating to the conditions of service of members of the subordinate ranks of the police force which were in force in Sind immediately before 1st April, 1937 shall continue to be in force. Rule 1270, 1278, 1284 and 1293 to which reference has been made in argument, therefore, continue to apply. It may appear at first sight arguable that under subsections (1) and (3) the Inspector‑General of Police may suspend, reduce or dismiss any member of the subordinate ranks of the police force whom he shall think unfit for the discharge of his duty and that he has the power to give effect to his opinion as to the person's unfitness. In terms his unfitness is not confined to any physical or special kind of unfitness, nor is it subject to any objective tests, so that it may be said that this opinion is not susceptible of any definite charge such as one of misconduct giving rise to what Rule 1278 terms "default proceedings", as indeed the cases of cruelty, perverseness, remissness or negligence in the discharge of duty are, but subsection 3 speaks of the power of the Inspector‑General of Police as an "authority to punish" and this authority is to be subject to rules and orders as may be made by the Provincial Government. Besides, in Muhammad Mukhtar Ahmad v. Mir Muhammad Hussain (P L D 1955 Sind 70) Constantine, C. J., and Munshi J. held that the reversion of an upper division clerk in the Posts and Telegraph Department to the post of a lower division clerk on the ground of unsatisfactory work is a penalty. Clause (b) of Sub‑rule (2) of Rule 1293 says that no appeal shall lie against the dismissal or removal of a person holding a temporary post. Removal from service not a bar to re‑employment in Government service in another department) and dismissal (bar to re‑employment in Govern ment service) are punishments which can be awarded to officers of and below the rank of Inspector under clauses (j) and (k) of Rule 1270. Rule 1278 relates to disciplinary enquiries and lays down general principles to be followed for the holding of depart mental enquiries into the misconduct of police officers, and the drawing up of proceedings under section 30 of the Bombay District Police Act and they are called "default proceedings" in sub‑rule (1). Sub‑rule (3) says that "in all cases in which an appeal lies, regular proceedings should be drawn up in accordance with these rules". It follows from this provision that in the cases in which no appeal lies, regular proceedings are not to be drawn up in accordance with the rules. Rule 1284 lays down the general outline of procedure in enquiries with a view to departmental punishment and in substance it provides the steps which are to be taken from the framing of the charge to the infliction of punishment and these correspond roughly but in substance to Rule 55 of the Sind Civil Services (Classification, Control and Appeal) Rules which contains instructions regarding the holding of departmental enquiries. It is in sub‑rule 12 of rule 1284 that the provision or principle of subsection (3) of section 240 Government of India Act has been applied, enjoining reason able opportunity to the person charged of showing cause against the action proposed to be taken in regard to him. A Sub‑rule 12 of rule 1284 cannot be availed of outside the procedure laid down in rule 1284 or in cases in which by reason of the provisions of sub‑rule (3) of rule 1278 read with clause (b) of sub‑rule (2) of Rule 1293, the procedure prescribed in Rule 1284 is not to be followed. That being the position under the Rules, it is within the saving clause of section 31‑A of the Bombay District Police Act which reads as follows: "Save as otherwise provided by or under this Act, and subject to any other law for the time being in force, all matters relating to the recruitment, pay, allowances and other conditions of service of police officers and below the grade of Inspector shall be regulated by the Sind Civil Services Rules for the time being in force." Reliance cannot therefore be properly placed upon Rule 165‑A of the Sind Civil Services Rules which in the proviso makes a reference to note 1 to Rule 33 of the Sind Civil Services Conduct, Discipline and Appeal Rules which again refers to Rule 55 of the Sind Civil Services (Classifica tion, Control and Appeal) Rules, the function of which is to lay down the procedure to be followed in departmental enquiries which is also the purpose of Rule 1284. It has been said that there should have been at least an inquiry with a view to summary action as in orderly room but that procedure is meant only for minor punishments while removal or dismissal are among the major punishments as appears from the notes to Rule 1270. Again it has been said that there should have been an inquiry and an opportunity given to each of the respondents to explain the material which the Inspector‑General of Police had against each of them which led him to think that his work was unsatisfactory in consonance with principles of natural justice. The question whether any principle of natural justice has been breached depends upon the facts of each case. No such facts constituting a breach of natural justice have been pleaded in any of the plaints. What has been pleaded in each of the plaints substantially is that the order removing the respondent from service was passed without holding any departmental proceedings against him to prove his work to be unsatisfactory, and without calling upon him to show cause against the action of removal from service to be taken in regard to him. The answer in the written statements was that the respondents being temporary police officers, these two steps were unnecessary. Neither side led any oral evidence and there is nothing in the plead ings or the documents filed which could be shown to us as having a bearing upon the question of breach of natural justice. Nor again does the matter appear to have been considered of any importance in the trial Court. There is further the consideration whether a question of breach of natural justice can arise in a case where the express pro visions of law and their effect preclude the doing of that which it is claimed should have been done as a principle of natural justice. For these reasons we allow the appeals and set aside the decree made in each of the appeals. Each respondent will bear the appellant's costs of the suit and the appeal. A. H. Appeals allowed.