P L D 1955 Sind 200 (PLP)

LARI, J.--‑By an older of O. G. Grace, Inspector-General of Police, Karachi, dated 30th December 1952, the services 4f 20 Police Officers belonging to the subordinate ranks were dispensed with, with effect from 31st December, 1952, on account of their alleged. unsatis factory work. Some of the persons affected by the order filed suits and 7 of them, namely, Suits Nos. 882, 883, 884, 885, 900, 983 and 986 of 1953 are before me for disposal. All these suits were consolidated and heard together as common questions of law and fact were involved. This suit has been filed by Noorul Hassan with the allegations that he had been selected for appointment as Sub‑Inspector of Police by a Selection Board on 29th June, 1948, subsequently he was appointed a Sub-Inspector of Police in Karachi Police and actually joined the Karachi Police on 15th August, 1948, he' became auto matically confirmred in that post before the end of 1950 by virtue of the terms and conditions of his service as. prescribed in Rule 38 of the Bombay District Police Manual, Vol. I, as amended per correction item No. 636 ; he continued to serve as Sub‑Inspector of Police till 31st December 1952 when his services were summarily dismissed without any sort of enquiry or departmental proceedings against him to show his work to be unsatisfactory and without calling upon him to show cause against the action of removal from the service and that the summary removal of his service was in violation of section 240 (3) of the Government of India Act, 1935, and the plaintiff's terms and conditions of service. The plaintiff also alleged that necessary notice under section 80 C. P. C, had been served on the defendants, The Federation of Pakistan, and prayed that it be declared that the plaintiff's removal from the service was void and inoperative and he continued to be in service of the Crown in Pakistan as a Sub‑Inspector of Police in Karachi Police. The Federation of Pakistan filed a written statement in which it was admitted that the plaintiff had been selected for appointment as Sub‑Inspector of Police by a Selection Board and that he joined the Karachi Police on 15th August 1948. But it was alleged that the plaintiff was appointed as a temporary Sub‑Inspector of Police and he continued to be on temporary basis till 31st December, 1952. The written statement contended that the Inspector‑General of Police was competent to dispense with the services of the plaintiff in exercise of his powers under the Bombay District Police Manual; he need not hold any departmental proceedings nor was bound to call upon the plaintiff to show cause before discharging him from service and that section 240 (3) of the Government of India Act, 1936, did not apply and the order of the Inspector‑General of Police was in accordance with the conditions of service applicable to the plaintiff. The defendants further contended that this Court has no jurisdiction to try the suit and notice under section 80 C. P. C: was not valid. The following issues were framed :‑ (1) Whether the plaintiff was automatically confirmed before the end of 1950 or at any time by virtue of Rule 38 of the Bombay District Police Manual, as alleged in part 6 of the plaint ? (2) Whether the posts of subordinate Police Officers (Sub‑Inspector) have been sanctioned on temporary basis from year‑to year. If so, what is the effect ? (3) Whether the provisions of Rule 38 of‑the Bombay District Police Manual and section 240 (3) of the Govern ment of India Act, 1935, do, not apply to the case of the plaintiff ? (3) (a) Whether the termination of the plaintiff's services amounted to removal from service ? (4) Whether the order of determining the services of the plaintiff is void, inoperative and in violation of the terms and conditions of the plaintiff's service ? (5) Whether the plaintiff served the defendants with a valid and legal notice under section 80 C.‑P. C. (6) Whether the jurisdiction of this Hon'ble Court, is barred ? (7) Whether these defendants have been wrongly implead ed and the suit is bad for mis‑joinder and non‑Joinder of necessary parties ? (8) Whether the defendants are entitled to compensatory costs ? (9) To what relief, if any, is the plaintiff entitled ? . (After setting out facts and issues relating to 6 other cases the judgment proceeded.) The patties did not adduce any oral evidence and made their submissions on the basis of admitted facts and documents exhibited in the case. The plaintiffs, however, also referred to Rule 165‑A of Sind Civil Service Rules and 'contended that that rule also applies to the plaintiffs and the impugned order of the Inspector‑General of Police was hit by that rule as well. The counsel for the plaintiffs were allowed to urge this point‑as it was a pure question of law. Keeping in view the issues framed in all the cases as noted earlier and the arguments at the bar the following points arise for consideration and determination :‑ (1) Whether the jurisdiction of this Hon'ble Court is barred ? (2) Whether the defendants have been wrongly impleaded and the suit is bad for mis‑joinder , and non‑joinder of necessary parties ? (3) Whether the, plaintiffs served the defendants with a valid and legal notice under section 80 C. P: C. (4) Whether the plaintiffs or any one of them were in permanent employ of the defendants on the date when the services of the plaintiffs were dispensed with ? (5) Whether Rule's' 38 and 33 of the Bombay District Police Manual apply to the plaintiffs or any one of them. If so, what is its effect ? (6) Whether the provisions of section 240 sub‑clause 3 of the Government of India Act, 1936, apply to the cause of the plaintiff. . If so, its effect on the impugned order ? (7) Whether the provisions of sub‑rule (12) of Rule 1284 of the Bombay District Police Manual Vol. 3 and Rule 165‑A of Sind Civil Service Rules apply to the cases of the plaintiffs or not. If the reply be in the affirmative how does it effect the impugned order of the Inspector‑General of Police ? (8) Whether order of the Inspector‑General of Police determining the services of the plaintiffs is void, inoperative and in violation of the terms and conditions of the plaintiff's services ? (9) Whether the order of the Inspector‑General of Police dispensing with the services of the plaintiffs amounts to removal from service within the meaning of section 240 (3), sub‑rule (12) of Rule 1204 of the Bombay District Police Manual Vol. 3 and rule 165‑A of Sind Civil Service Rules ? (10) Whether defendants are entitled to compensatory costs ? (11) To what relief, if any, is the plaintiff entitled ? Decisions with reasons thereof Point No. I.‑--Whether the jurisdiction of this Hon'ble .Court is barred ? This point was not pressed by the learned counsel for the defence and rightly so. Section 9 C. P. C. makes the position clear. This Court has jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred. ‑ Explanation to the section says that a suit in which the right to an office is contested is a Suit of Civil Nature. The point is decided against the defendants and in favour of the plaintiffs. Point No. 2.‑Whether the defendants have been wrongly impleaded and the suit is bad for mis‑joinder and non‑joinder of necessary parties ? The contention of the learned counsel for the Federation of Pakistan was * that .the suit should have been filed against the Inspector‑General of Police or the Chief Commissioner Similar question arose in the case Muhammad Ismail Chaudhry v. The Federation of Pakistan (1) and their Lordships of the Bench held that in case of a suit directed against an authority under the control of the Federation of Pakistan it was the Federation of Pakistan which was the only necessary party. The Federation of Pakistan have been rightly impleaded and the suit is not bad for mis-joinder and non‑joinder of necessary parties‑. The point is decided against the defendants. Point No. 3.‑Whether the plaintiffs served the defendants with a valid and legal notice under section 80 C: P. C. P L D 1954 Sind 273 This point was raised on the basis that the Chief Commissioner was a necessary party. The learned counsel for the Federation of Pakistan clearly stated that in case it be held that the Federation of Pakistan was the proper party, invalidity of notice under‑ section 80 C. P. C. could not be pressed. I hold that the notices given under section 80 C. P. C. were valid. The point is decided against the defendants. Points Nos. 4 and 5.‑Whether the plaintiffs or any one of them were in permanent employ of the defendants on the date when the services of the plaintiff's were dispensed with ? Whether Rules 38 and 33 of the Bombay District Police Manual apply to the plaintiffs or any one of them. If so, what is its effect ? "Noorul Hassan the plaintiff in suit No. 882 of 1953 was appointed by means of an order dated 18th May 1948 Exh. 5/1 in the case. The‑relevant order runs thus: "Noorul Hassan appointed temporary S. I. with effect from 10th August 1948 forenoon vice one of the temporary appointment for Sgts. at Air Port. He is posted to New Town P. S. as extra S. I." It was contended that under Notes 2 to Rule 38 of the Bombay District Police Manual, Officers appointed as Sub Inspectors had to remain on probation for a period of 18 months after which they will be confirmed if found fit. But this rule has no application to the plaintiff as he was specifically appointed as temporary Sub‑Inspector and there is nothing to show that‑ temporary Sub‑Inspectors, as a matter of course become confirmed after the expiry of a period of 18 months. I, therefore, hold that Noorul Hassan is not proved to be a permanent Sub‑Inspector and must be treated as temporary Sub‑Inspector for the purposes of this suit. Amanullah Khan Sherwani the plaintiff in Suit No. 883 of 1953 was appointed as officiating Sub‑Inspector with effect from 1st August, 1948, forenoon vice S. I. Zakaullah on deputation. Similar argument was addressed in this case on the basis of Note to the' above mentioned Rule 38 of the Bombay District Police Manual. Whether any officiating person can be considered to be permanent came for considera tion before the Federal Court of India in the case Durga Prasad v. The Crown (A I R (36) 1949 F C 50). Their Lordships held that the word "officiate" in the order of appointment clearly indicated that the officer concerned was not appointed permanently: I hold that it is not proved that Amanullah Khan Sherwani was appointed a permanent Sub‑Inspector. The plaintiff Habib Ahmad was selected for appointment as Inspector in Sind Police by a Selection Board vide Exh. 5/6 which says : "The following candidates have been placed on the selec tion list and will be considered for appointment as Inspector of Police as and when vacancies occur. The names are arranged in order of merit." The plaintiff was placed second in the list which included 8 names. Subsequently the plaintiff was appointed as Officiating Inspector of Police, vice Hardamal on leave and posted as Additional Motor Vehicles Inspector at Karachi `vide Order Exh. 5/4 and 5/5. Some time later Karachi was separated from Sind and services of certain police officers were transferred to Karachi. The relevant notification is to be found at page 3‑8 of Gazette of Pakistan, dated April 21st, 1950, marked Exh. 5/2. The relevant partion runs thus: " Consequent on the separation of Karachi from Sind the following inspectors of Police were transferred to Karachi with effect from 23rd of July, 1948, and were posted to the Branches shown against their names." The name of the plaintiff is at No. 14 and the Branch mentioned against him is Unarmed Branch. Then there is another notification published at page

209. It runs thus: "Mr. Habib Ahmad, Inspector of Police, Karachi, was transferred to the C. I. D. Branch with effect from 1st November 1948 for a period extending to 9th November 1949. He was reposted in the Unarmed Branch with effect from 10th November, 1949, for a period extending to 10th December 1949 and again transferred to the C. I. D. Branch with effect from 11th December, 1949." ' It is clear that the plaintiff had been selected for per manent appointment in Sind Police and was first given an officiating chance in place of Hardamal, a Police Inspector, who went on leave. This Hardamal did not return from India and consequently the plaintiff became the holder of the clear vacancy on the permanent cadre of Police Inspector in Sind Police Force. When his services were transferred to Karachi he was not appointed in any officiating capacity, as there are no such words to that effect in the relevant order quoted above. The order describes the plaintiff as Inspector of Police without addition of any words such as 'Officiating' or 'Temporary'. Under sub‑rule 5 of rule 33 of the Bombay District Police Manual officers appointed to the rank of Inspector had to' be on probation for a period of one year from the date they are appointed in a clear vacancy. In an unreported case of Calcutta High Court Vechaler v. Johnston and Hoffman (2), it was held that if the employee survived the period of probation he passed into the per manent service of the employer, In view of this it is argued that the plaintiff having been appointed in a clear vacancy, he became permanent on the expiry of one year. Besides the Court has to presume that all rules and regulations were complied with and all acts were done regularly and in accordance with Rules and Regulations. The notifications in Gazette, dated April 21st, coo not at all indicate that the plaintiff was temporary or merely officiating. (2) Original suit No. 455 of 1928 mentioned at page 66 of Vol. 1 Master and servant by Barwell and Kar. Considering that the plaintiff had been selected for a permanent appointment, every appointment had initially to be on probation for a period of one year and the Notifications concerning him after the separation of Karachi from Sind do not show him to be a temporary or officiating hand, I have come to the conclusion that the Plaintiff has established his claim to be a permanent Inspector of Police. Orders which affect the rights of subject' must be‑construed liberally and if a beneficial construction is possible that construction should be given. The orders of the Karachi Administration do not at all show that the plaintiff was a temporary or officiating hand and consequently it must be held that he was appointed as a permanent Inspector of Police. I hold accordingly. Qadir Ahmad Siddiqi; the plaintiff in Suit No. 885 of 1953, was appointed as officiating Sub‑Inspector with effect from 28th July, 1948, vide Exh. 5/1. His case is on the same footing as that of Amanullah Khan Sherwani in Suit No. 883 of 1953. I hold that it is riot proved that Qadir Ahmad Siddiqi was a permanent S. I. Khader Basha Aslami, the plaintiff in Suit No. 900 of 1953, was appointed by means of an order dated 8th October 1949, Exh. 5/1, which says that all the officers were being appoint ed as Sub‑Inspectors on a temporary basis and will not be confirmed for a period of 1 years. It has been contended that more than 1 years having elapsed it must be presumed that the plaintiff was made permanent. But, to my mind, this argument is not open as he was specifically on a temporary basis. The order amounted to this that, he could not be confir med before the expiry‑of 1 years. But it does not mean that he must necessarily be confirmed or deemed to be confirmed after the expiry of 1 years. I have no option but to hold that the plaintiff has failed to prove that he was a permanent S. I. on the date his services were dispensed with. The services of Akram Abbas, the Plaintiff in Suit No. 983 of 1953 were transferred from Sind to Karachi. The order of his posting vide Exh. 5/1 runs as follows: "On transfer from Tharparkar District, S. I. Akram Abbas Rizvi is posted to Central Police‑ Section. Date of taking over charge should be reported." There is nothing in this order to show that Akram Abbas was either a temporary or officiating S. I. At the worst the order can be said to be ambiguous. But the ambiguity should enure to the benefit of the plaintiff and not the Crown. This finds support from the observations of the Federal Court of E India in the case of Durga Prasad v. The Crown. I hold that it has been shown that Akram Abbas was a permanent S. I. Hashmat Ali, the plaintiff in Suit No. 986 of 1953, was appointed by means of an order dated 25th October, 1949, Exh. 5/1. This order definitely says that he was appointed as A. S. I. on a temporary basis and that he will not be confirmed for at least a period of 1 years. It has not been shown to me that the plaintiff was subsequently confirmed. I hold that the plaintiff was a temporary hand. From the foregoing it would appear that plaintiff Habib Ahmad and Akram Abbas in Suits Nos. 884 of 1953 and 983 of 1953 respectively are permanent officers while the rest are temporary. Points Nos. 6, 7, 8, & 9.‑‑Whether the provisions of Section 240 sub‑clause 3 of the Government of India Act, 1935, apply to the case of plaintiff. If so, its effect on the impugned order ? Whether the provisions of sub‑rule (12) of rule 1284 of the Bombay District Police Manual Vol. 3 and rule 165‑A of Sind Civil Service Rules apply to the cases of the plaintiffs or not. If the reply be in the affirmative how does it affect the impugned order of the Inspector‑General of Police ? Whether the order of the Inspector‑General of Police determining the services of the plaintiffs is void, inopera tive and in violation of the terms and conditions of the plaintiff's services ? Whether the order of the Inspector‑General of Police dispensing with the services of the plaintiffs amounts to removal from service within the meaning of section 240 (3), sub‑rule (12) of Rule 1284 of the Bombay District Police Manual Vol. 3 and Rule 165‑A of Sind Civil Service Rules. These points can be disposed of together. The rule that a civil servant holds office at the pleasure of the Crown, had its origin in the Latin phrase "Duranti Bene Placito" meaning that the tenure of office of a civil servant could be terminated at any time without cause assigned unless otherwise provided by statute. This rule of English law was given statutory recognition by section 96‑B of the Government of India Act, 1919, which runs as follows: " Subject to the provisions‑of this Act and the Rules made therein every person in the Civil Service of the Crown in India holds office during His Majesty's pleasure, and may be employed in any manner required by a proper authority within the scope of his duty, but no person in that service may be dismissed by any authority subordinate to that by which he was appointed ............................................. If any such person appointed by the Secretary of State in Council thinks himself wronged by an order of an official superior in a Governor's province, ‑and on due application made to that superior does not receive the redress to which he may without prejudice to any other right of redress, complain to the Governor of ‑ the Province in order to obtain justice." The Government of India Act, 1935, however, went further and apart from recognising that every civil servant holds office during His Majesty's pleasure placed two sub stantial limitations on exercise of the power of the Crown to dismiss a civil servant. Section 240 of the Government of India Act, 1935, runs thus: "

1. Except as expressly provided by this Act, every person who is a member of a Civil Service of the Crown in Pakistan or holds any civil post under the Crown in Pakistan, holds office during His Majesty's pleasure.

2. To such person as aforesaid who having been appointed by the Secretary of State or the Secretary of State in Council continues after the establishment of the Federation to serve under the Crown in Pakistan shall be dismissed from the service of His Majesty by any authority subordinate to the Governor‑General or the Governor according as that person is serving in connection with the affairs of the Federation or a Province, no other such person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed.

3. No such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him : Provided that this subsection shall not apply

(a) Where a person is dismissed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge ; or (b) Where an authority empowered to dismiss a person or reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to give to that person an opportunity of showing cause." Section 240 above quoted was followed by section 243 which is material for the purposes of these cases and it runs in the following words: "Notwithstanding anything in the foregoing provisions of this chapter, the conditions of service of the subordinate ranks of the various police forces in Pakistan shall be such as may be determined by or under the Acts relating to those forces respectively." Keeping in view the provisions of section 243 of the Government of India Act, 1935, certain amendments were made in section 4 of the Bombay District Police Act, 1890, by the Government of India Adaptation of Indian Laws Order, 1937, and section 4 after the necessary adaptation came to be read as follows: "In each district of the presidency of Bombay and Sind to which this Act extends, (the Provincial Government) may establish and entertain a police force of such number in the several ranks and having such an organization and such duties, rights and authority as are hereinafter prescribed and provided for." Subject to the provisions of this Act the pay and all other conditions of service of members of the subordinate ranks of any police force shall be such as maybe determined by the Provincial Government." By a Notification No. 1491/1‑H‑36 dated 7th February 1938, His Excellency the Governor of Sind in exercise of his powers conferred by section 4 of the Bombay District Police Act, 1890, directed that all rules, orders and notifications relating to the conditions of service of members of the subordinate ranks as were in force in the Province of Sind immediately before the 1st of April 1937 shall continue in force and be deemed to have been made, passed or issued in the exer cise of the said powers and with effect from the said date. As a result of the above notification rules contained in Bombay Police Manual determined the conditions of service of the subordinate ‑rank of Police in Sind as then constituted. I may here note that section 4 of the Bombay District Police Act, 1890, has ever admittedly applied to the police force in Sind and Karachi. By a Government resolution of the Political and Miscellaneous Department No. 741‑M/41, dated 24th December 1942, the Provincial Government of Sind ordered that no Government servant could be dismissed, removed, discharged or reduced in rank until he had been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him and consequently by a correction slip No. 255 sub‑rule 12 was added to rule 1284 of Bombay District Police Manual, Vol.

3. By another resolution No. 741‑5/41, dated 7th August 1945, the Provincial Government ordered that in case penalty proposed was the dis missal, removal or reduction the civil servant concerned be sup plied a copy of the report of the enquiring authority and he be called to show cause within a reasonable time not ordinarily exceeding one month against the particular penalty proposed to be inflicted. By a correction slip No. 272 an addition was made to sub‑rule 12 of rule 1284 (which) took the following shape: " In accordance with section 240 (3) of the Government of India Act, 1935,.no Government servant can be dismissed, removed, discharged or reduced in rank until he had been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him, except in case: (a) Where a person is dismissed, discharged, removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge ; (b) Where an authority empowered to dismiss, dis charge, remove or reduce him in rank is satisfied that for some reasons, to be recorded by the authority in writing, it is not reasonably practicable to give to that person an opportunity of showing cause." "It is, therefore, necessary that after the enquiry against a Government servant has been completed and after the punishing authority has arrived at provisional conclusions in regard to the penalty to be imposed the defaulter should if the penalty proposed is dismissal, removal or reduction, be supplied with a copy of the report of the enquiring authority and be called upon to show cause within a reasonable time not ordinarily exceeding one month, against the particular penalty proposed to be inflicted. Any representation submitted by the defaulter in this behalf should be duly taken into consideration before final orders are passed." The Bombay District Police Act 4 of 1890 was amended on 3rd April, 1947, by the Sind Legislature. A new section No. 31‑A was added. This section runs 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 below the grade of Inspector shall be regulated by the Sind Civil Service Rules for the time being in force." It may be noted that. by a notification dated 28th Decem ber 1939 the Government of Sind has adopted the Bombay Civil Service Rules Manual, Vol.‑ 1, 3rd Addition as Sind Civil Service Rules with effect from 1st March 1940 with certain amendments which accompanied the notification dated 28th December, 1939. Rule 165‑A of Sind Civil Service Rules lays down " A competent authority may remove any Government servant subject to these rules from Government service, or may require him to retire from it, on the ground of misconduct, insolvency or inefficiency: Provided that, before any such order is issued, the procedure referred to in Note (1) to rule 33 of Sind Civil Service (Conduct, Discipline and Appeal) Rules shall be followed." Note (1) to rule 33 says: " For procedure to be followed before an order of dismissal, removal or reduction can be passed see Rule 55 of the Civil Service (Classification, Control and Appeal) Rules 1930 which has been reproduced in the appendix to these Rules." Now, rule 55 of the Civil Service (Classification, Control and Appeal) Rules at para. 2 runs thus: The essential requirements of the rule are: (a) No order of dismissal, removal or reduction (other than an order based on facts which have led to his con viction in a Criminal Court) shall be passed unless the Government servant concerned (hereinafter referred to as the person charged), has been informed in writing of the grounds on which it is proposed to take action. (b) The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the person charged, together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders in the case. (c) The person charged shall be required, within a rea sonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. (d) If he so desires, an oral enquiry shall be held. At the enquiry so held, oral evidence shall be heard as to such of the allegations as are not admitted and the person charged shall be entitled to cross‑examine the witnesses, to give evidence in person and to have such witnesses called; as he may wish, provided that the officer conducting the inquiry may, for reasons to be recorded in writing, refuse to call any witnesses. (e) The proceedings shall contain a sufficient record of evidence and a statement of the findings and grounds." On separation of Karachi from Sind all Enactments and Laws and all Notifications, Orders, Schemes, Rules, Forms or Bylaws issued, made or prescribed thereunder which im mediately before the date appointed under Article 30 wee in force or prescribed in the areas comprising Karachi unless and until other provisions were duly made by para 6 of the Pakistan (Establishment of the Federal Capital) Order 1948. In view of the provisions of para 6 of the Order, Rule 1284 of the Bombay District Police Manual Vol. 3 and Rule 55 of the Civil Services (Classification, Control and Appeal) Rules read with Note (1) to Rule 33 of the Bombay Civil Sessions (Conduct, Discipline and Appeal) Rules and Rule 165‑A of the' Sind Civil Service Rules applied to the subordinate ranks of the police force in Karachi. The first contention of the learned counsel for the Federa tion of Pakistan who argued exhaustively is that section 420 of the Government of India Act, 1935 did not apply to the plaintiffs in view of section 243 of the Government of India Act as all the plaintiffs are members of the subordinate ranks of the Karachi Police. It is true that the plaintiffs are members of the subordinate ranks of the Karachi Police and so far as they are concerned section 240 of the Constitution Act has to be read subject to the provisions of section 243 of the same Act, in view of decision of the Privy Council in the case North West Frontier Province v. Suraj Narain Anand (A I R (36)1949 P C 112=P L D 1949 P C 1) The Federal Court of United India had reached a contrary conclusion in the case Suraj Narain Anand v. North West Frontier Province (A I R (29) 1942 F. C. 3.) wherein their Lordships of Federal Court held that the expression "conditions of service" in section 243 was not wide enough to comprehend matters dealt with in subsections (1) and (2) of section

240. But in the face of the decision by the Privy Council I am not free to prefer the decision of the Federal Court reported in the case just mentioned. It appears to me, however, that the provisions of section 240 of Constitution Act would apply if there were no contrary provisions as contemplated by section 243 of the Government of India Act. In other words it means that provisions of section 240 cannot apply to the ranks of the F subordinate police to the extent of repugnancy between the provisions of section 240 and other provisions that may fall within the put view of section 243 of the Government of India Act. This view finds support from the observations of a Bench of Allahabad High Court in the case Jaganath Prasad v. State of U. P. and others (A I R 1954, All. 629) In Para 15 their Lordships observed: "The plain meaning of section 243 of the 1935 Act is, that if with regard to the conditions of service of the subordi nate ranks of the police force (as determined by or under the Police Act) there is a conflict between such conditions and the provisions of sections 240, 241 or 242, the former will prevail. In other words, it is only to the extent to which the conditions of service of such police officers are inconsis tent with the provisions of those sections that the operation of the latter will be exculded." In this case North West Frontier v. Suraj Narain Anand (4) their Lordships allowed the appeal of the Crown on the ground that there was a rule within the meaning of section 243 of the Government of India Act, 1935, which authorised dismissing authority in that case to pass the order of dismissal that it did but subsequently it transpired that the rule was not in force on the date of dismissal of the officer concerned and their Lordships of the Privy Council thereupon reviewed their earlier order and restored the order of the Federal Court. In other words their Lordships of the Privy Council applied the provisions of section 240 of the Government of India Act, 1935, as there was no rule inconsistent with the provisions of section 240 in force on the relevant date. Sub‑rule (12) of Rule 128‑1 of the Bombay District Police Manual Vol. 3 and Rule 165‑A read with Note (1) mentioned above practically incorporate the provisions of section 240 of the Government of India Act, 1935. Thus here there is no conflict between G section 240 of the Constitution Act and the conditions of service as prescribed under by‑rules within the meaning of section 243 of the Act and subsequently section 240 is applicable to the cases under consideration. The learned counsel for the defendants relied on cases Gulzar Ahmad Jafri v. Government of United Provinces (A I R 1950 All. 212) Province of Bombay v. Ganpat Nerlekar (A I R 1952 Bom. 37) Babu Ram v. Dominion of India (A I R 1932 Pb. 337) Harnamsingh Indersingh v. State of Madhya Pradesh (A I R 1952 Nag. 172) and Mewa Ram Ram Charan v. United Provinces (A I R 1954 All. 457). The case reported in A I R 1954 Allahabad 487 followed the earlier Allahabad case reported at page

212. In the latter case their Lordships observed in Para 34: "Further it was not claimed before us that the provisions of section 240, particularly subsections 2 and 3, would govern the case if there were no rules validly made by the Pro vincial Government or if there was nothing repugnant in them." The other cases relied upon have not discussed at all as to what would be the position if there were no repugnancy between the provisions of section 240 and the conditions determined under section 243 of the Government of India Act. Consequently these cases do not go contrary to the view taken by me in regard to interpretation of sections 240 and 243 of the Constitution Act. Even if it were held that section 240 has to be entirely ignored while considering the cases of subordinate ranks of the police the position would not materially change because sub‑rule (12) of Rule 1284 of the Bombay District Police Manual and Rule 165‑A of Sind Civil Service Rules are so wide and perhaps wider than the provisions of section 240 of the Government of India Act. It was, however, contended that breach of Rules made under section 4 or section 31‑A of the Bombay Police Act could not entitle the plaintiffs to claim any relief in this Court. Reliance was placed in this connection on cases R. Venkata Rao v. Secretary of State (A I R 1937 P C 31), and R. T. Rangachari v. Secretary of State (A I R 1937 P C 27). Their Lordships of the Privy Council observed in these cases to the effect that even where there had been serious failure to adhere to impor tant and fundamental rules, as for instance in the case of a person who had been dismissed from service without any investigation into the charge is per Rule 14 under section 96‑B of the Government of India Act of 1919 the remedy of the person aggrieved was by way of appeal and did not lie by a suit in a Civil Court. These cases were decided in reference to provisions of section 96‑B of the Government of India Act 1919. That Act did not contain any section corresponding to section 243 of the present Constitution Act. The effect of section 243 of the Government of India Act is that provisions made under section 243 have received statutory recognition and these conditions operate as a limitation on the power of the Crown to dismiss or remove any civil servant without assigning any reason. The point has been considered in case Province of Bombay v. Madhukar Ganpat Nerlekar and in the case of Newa Ram Ram Charan v. United Provinces. In the former case his Lordship observed in Para 71: It is, therefore, clear that, so far as the special provisions of section 243 and the statutory force given by them to the Rules made under the Police Act regarding conditions of service are concerned a breach of those rules would give rise to a cause of action". I am in respectful agreement with the above observation and am definitely of view that breach of any of the rules in the Bombay District Police Manual Vol. 3 and Sind Civil Service Rules would entitle the plaintiffs to claim relief. The second contention of the learned counsel for the Federation of Pakistan is that the plaintiffs being temporary servants they cannot avail of the provisions of section 240 of the Government India Act, 1935, sub‑rule (12) of Rule 1284 of the Bombay District Police Manual Vol. 3 or Rule 165‑A of the Sind Civil Service Rules. I have held that the plaintiff's Habib Ahmad and Akram Abbas in suits Nos. 884 and 983 of 1953 respectively are permanent while the rest were temporary officials. But the above provisions do not at all make a distinction between permanent and temporary civil servants. The words are wide enough to include temporary civil servants as well. All the decided cases that were brought to my notice support this view. Reference may be made to the cases of Yusuf Ali Khan v. The Province of the Punjab (P L D 1949 Lah. 219), Ramesh Chandra v. State of West Bengal (A I R 1953 Cal. 188) and Jayanti Prasad v. The State of Uttar Pardesh (A I R (38) 1951 All. 793). A mere perusal of the rules in question and section 240 of the Government of India Act would show that no distinction between permanent and temporary Government servants is warranted by their language. It was further argued on behalf of the Federation of Pakistan that the word "dismissal" in section 240 of the Government of India Act did not include removal and reliance was placed on the following observations of the Supreme Court of India in case of Satish Chand Anand v. The Union of India (A I R 1935 Sup. Court 250): "The Act of 1935 elected only two of these possible penalties as serious enough to merit statutory safeguards, namely, reduction in rank and dismissal from service. The constitution has added a third to the list. The above observations ignored section 277 which says that reference to dismissal from His Majesty's service included reference to removal from His Majesty's service. The decision of the Supreme Court relied upon is obviously incorrect. The Supreme Court of India itself in a later decision reported in A I R 1954 Supreme Court page 369 reached a contrary conclusion.' His Lordship Justice Das who delivered the judgment of the Court in this case observed. "It will, however, be noticed that in subsection (3) the word 'removed' was not used, although that word occurred in rule 55 and the other rules quoted above. It was, how ever, held in High Commissioner for India v. I. M. Lal (A I R 1948 P C 121 : P L D 1948 P C 150) that removal was within section 240 sub‑clause 3, which conclusion implies that removal is comprised within dismissal." The same conclusion was reached is the case Ramesh Chandra v. State of West Bengal (supra) and in case Tribhuwannath Pandey v. Government of the Union of India (A I R 1953 Nag. 138). In the latter case discharge of a probationary was also held to amount to removal. Thus there can be no doubt that the word "dismissal" in section 240 also included removal. So far as Rule 1278 of the Bombay District Police Manual and Rule 165‑A of Sind Civil Service Rules are concerned they specifically referred to removal. The former refers to dis charge also. It was, further, contended on behalf of the Federation of Pakistan that termination of service in order to amount to removal of service must be based on misconduct. Reference was made in this connection to the case Shyamlal v. State of Uttar Pradesh. Their Lordships observed in para 17 :‑ "There can be no doubt that removal (using the term synonymously with dismissal) generally implies that the officer is regarded as in 'some manner blameworthy or deficient, that is to say, that he has been guilty of some misconduct or is lacking inability or capacity or the will to discharge his duties as he should do." Assuming the above to be the real criterion of removal the cases of the plaintiffs fall within its scope as the plaintiffs were discharged on account of their work being "found unsatisfactory". Removal, however, in my view means forced premature retirement. Their Lordships of the Allaha bad High Court in case Jyanti Prasad v. State of Uttar Pradesh observed as follows. "It is not so much a question of the post being held temporarily or it being of a permanent nature, the real question is whether a person's services are being dispensed with before his normal period of service has terminated by reason of misconduct on his part, or otherwise." The use of word "otherwise" is significant. The law in this respect was reviewed by the High Court of Assam in Bijoy Chandra v. State of Assam and others (A I R 1954 Assam 12) and the following conclusion was reached. Wherever there is a termination of service before the expiry of the period for which an incumbent, whether permanent or temporary, is entitled to remain in service and against his will, whatever the cause, it will be a case either of dismissal or of removal for purposes of Art. 311." The wording of Art. 311 is practically identical with the rules and provisions under consideration in these cases. I am therfore, of opinion that discharge on account of "unsatisfactory work" falls within the word" removal". It was lastly contended that in view of sub‑rule 3 of Rule 1278 sub‑rule 12 would not apply to the case of the plaintiffs. Sub‑rule 3 runs thus. "In all cases in which appeal lies regular proceedings should be drawn up in accordance with these rules." From this it was argued that no regular proceedings need be drawn in cases where no appeal lay and under rule 1293 no appeal lay from dismissal or removal of a temporary officer. The words "drawing of proceedings" do not exclude applicabil ity of sub‑rule 12 or sub‑rule 7 of rule 1278. Besides sub‑rule 12 came into existence much later and sub‑rule 3 and sub‑rule 12 must be read together to avoid any inconsistency. Even in a summary proceedings where everything need be merely oral sub‑rule 12 can be applied. No such argument was raised in regard to Rule 165‑A of Sind Civil Service Rules. I am of opinion that Rule 1278 of the Bombay District Police Manual including sub‑rule 12 applies to the cases of the plaintiffs. From the above discussion it would be clear that plaintiffs are entitled to the benefit of section 240 of the Government of India Act 1935 or in the alternative of Rule 1278 of the Bombay District Police Manual Vol. 3 and Rule 165‑A of Sind Civil Service Rules. The effect ‑ of Rule 1278 was considered by Bombay High Court in the Province of Bombay v. Ganpat Nerlekar Their Lordships held that the rule was mandatory. This rule 1278 was also given effect to by my brother justice Munshi in the case Khadim Hussain v. The Federation of Pakistan decided on 17th November 1954. In either case no order of removal or discharge could be passed without departmental enquiry. It is conceded on all hands that no enquiry whatsoever preceded the order of discharge in question. Consequently order of discharge in the case of each plaintiff is invalid, void and inoperative and the plaintiffs continue to be in service of the Federation of Pakistan. Point No. 10.‑--Whether defendants are entitled to compensatory costs ? It was stressed on behalf of the plaintiffs that the impugn ed order of Inspector‑General of Police was made in defiance of mandatory provisions of statutory rules and Constitution Act, was not based on any materials whatsoever and in fact was made in disregard of commendations and certificates given to some of the plaintiffs shortly before the passing of the impugned order. My attention was drawn to the case of Noorul‑Hassan plaintiff in Suit No. 832/53 who filed documents Nos. 5/4 to 5/31 showing that he was commended on various occasions during his period of service. I may note the mark given by D. I. G. as late as 18th October 1952. It runs thus: "It is gratifying that you have exerted and brought the crime under control". In Exh. 5/31 which is an inspection note of the police station by Mr. Rasul Bux Baloch Deputy Superintendent "B" Sub- Division, the following remarks occur: "The detection work of this police station is satisfactory. The S. I. has taken preventive action during the year . . The S. I. has taken initiative is raiding the gambling dens. The S. I. is putting his efforts to bring the crime and criminals under control." Reference was also made to Exhibits 5/4 to 5/26 in case of Khader Basha Aslami. These documents show that Khader Basha was complimented for his good work on various occasions. The last commendatory note is dated 31st November 1952 only about a month before the impugned order of his discharge. There seems to be great force in the contention of the counsel for the plaintiffs that record of the plaintiffs had been disregarded and the order of the Inspector‑General of Police was passed arbitrarily. The Inspector‑General of Police is, however, not a party to these cases and the Federation of Pakistan has already suffered on account of loss of services of the plaintiffs and will have to pay the salaries of the plaintiffs for 3 years without benefit of any corresponding service on their part. I do not think this is a fit case in which the Federation of Pakistan should be saddled with compensatory cost. Point No. 11.‑--To what relief, if any, are the plaintiffs entitled ? In view of my decision on foregoing points the plaintiffs are entitled to succeed. I, therefore, decree all the 7 suits and declare that the order of Inspector‑General of Police, Karachi, dated 30th December 1952, dispensing with the services of the plaintiffs with effect from 31st December 1952, is illegal, void and inoperative and that the plaintiffs continue to be in service of the Federation of Pakistan. The plaintiffs will get their cost from the defendants. A. H. Suits decreed.