P L D 1955 Sind 11 (PLP)

MUHAMMAD BACHAL, J.--‑In this case the plaintiff filed the suit for a declaration that the order passed on 5th June, 1951, dismissing him is void acid inoperative and he continues to be in service. The plaintiff was an armed police head constable in the Karachi Police. On 30th March, 1950, he was served with a charge sheet by the. Superintendent of Police Headquarters Karachi for gross negligence of duty having failed to check a half‑witted Bengali youth Nurul Haq, who entered the house of the Governor‑General of Pakistan on 2nd March, 1953 (1950 ?) during his duty hours. On 2nd April, 1951, the plaintiff submitted an explanation to the charge sheet wherein he admitted that Nur‑ul‑Haq had entered the G.‑G's. House but stated that this was due to the bad arrangements of the G.‑G's. House. On 24th May, 1951, he examined four witnesses in defence. On 30th May, 1951, he gave 'written arguments on the evidence recorded. Mr. Lewis, Superinten dent Headquarters, who is now dead, recorded on that day his final statement as under: " Q.‑--Have you received ‑a copy of the charges framed against you ? A .‑--Yes _ Q.‑--Do you understand the charge ? A.‑--Yes. Q.‑--Do you plead guilty to the charge ? A.‑--No. Q.--‑Do you want to produce any more witnesses in your defence ? A.‑--No. Q.--‑Have you anything further to say ? A.‑--I have nothing further to say." This statement was signed by the plaintiff and Mr. Lewis Ahmed Hussain sheet clerk wrote the questions and answers. Then Mr. Lewis recorded in his own handwriting the following question and answer " Q.‑--Can you show .cause why you should not be dismissed ? A.‑--I say that I am not guilty as the :staircase was in my charge and I admitted this from the first. Had I denied charge of the staircase the charge would not have been given to me." This statement was signed by him and the plaintiff. On 5th June, 1951, he recorded his finding and final order dismiss ing the plaintiff from service. Rule 1284 sub‑rule (12) of the Bombay District Police Manual as amended by correction slip Item No. 272, G. R. P:‑M 5epartment No. 741‑H/41 dated 7th August, 1945, runs as under: "After the enquiry against a Government servant has been completed and after the punishing authority his 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 pro posed to be inflicted. Any representation submitted by the defaulter in this behalf should be duly taken into con sideration before final orders are passed." It is the contention of Mr. Shams‑ul‑Ghani on behalf .of the plaintiff that the plaintiff was not supplied with a copy of the findings of the inquiry officer and that one month's time was not given to him to show cause against the particular penalty proposed to be inflicted. The following issue only arises for determination : Were the provisions of section. 240 (3) of the Government of India Act, 1935 read with sub rule (12) of Rule 1284 of the Bombay District Police Manual as amended by Correction Item No. 272 G. R. P. & M Depart ment No. 741‑H/41 contravened in dismissing the plaintiff ? If so, what is the effect ? My finding on the first part of the issue is in the negative, and finding on the second part of the issue does not arise. Reasons In Suraj Narain's case, A I R 1949 P C 112(=P L D 1949 P C 1) Their Lordships of the P. C. held that the provisions of section 243 ( .?) over those of section 240 Government of India Act. Section 243 reads as under :‑ "

243. 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." A head constable of Police belongs to a subordinate rank. Under section 3(i) of the Bombay District Police Act, hereinafter referred to as the Act, the expression " subordinate rank " means members of the police force below the rank of Deputy Superintendent, and this therefore clearly includes the plaintiff, a head constable. Under section 4 of the Act the conditions ‑of service of members of the subordinate ranks of police force shall be determined by the Government. So far as the appointment of head constables are concerned, section 11 of the Act provides that every police officer of the grade of head constable shall receive a certificate of appoint ment from the Superintendent and this section clearly appears to contemplate that the appointment itself is to be made by the Superintendent and the provisions relating to the suspension, reduction or dismissal of subordinate members are to be found in section 29 of the Act which in virtue of section 243 of the Government of India Act must regulate and control the conditions of the service of the plaintiff. Section 29 (1) of the Act provides. " 29 (1) The Provincial Government or any officer authorised by subsection (3) in that behalf, 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, and may fine, to an amount not exceeding one month's pay, any member of the subordinate ranks of the police force ...who is guilty of any breach of discipline or misconduct which does not require his suspension or dis missal or who; by any act of his own, renders himself unfit for the discharge of his duty." And the officer mentioned in subsection (3), authorised within the meaning of subsection (1) to punish, is the Super intendent. Section 30 of the Act reads as under :‑ " When any officer passed an order fining, suspending., reducing or dismissing a police officer, he shall record such order or cause the same to be recorded, together with the reasons therefore and a note of the inquiry made, in writing, under his signature in the language of the district or in English." Section 79 provides that rules and orders are not deemed to be invalid on account of the defect of form or irregularity in procedure. As observed by the learned Chief Justice in State of Bombay v. Gajnan Mahadev Badley (A I R 1954, Bom. 351.) at p. 355 " It is perfectly true, as argued by the Advocate‑General, that it would depend upon the facts of each case whether a reasonable opportunity as contemplated by the Privy Council was or was not afforded to the dismissed servant. When an inquiry against a dismissed servant is, as it were, in two parts, where there is, first, a departmental inquiry and then a notice to show cause is served upon him by the authority which proposes to dismiss him, the Court has got to look at both parts of the inquiry in order to come to the conclusion whether a reasonable opportunity was afforded to the servant to show cause against the action proposed to be taken against him. It may not be necessary to duplicate what has already been done in the departmental inquiry. It may be said that if in fact the dismissed servant has been given a full and proper opportunity to show cause against the allegations made against him, then it may not be necessary again toy require from him practically the same explanation. It may also be said that it may not be necessary in every case to issue a notice in terms calling upon the servant to show cause not only against the quantum of punishment but also against the grounds on which the proposed action is based. Even though, as in this case, the notice may be defective, if in fact, the servant has been given the oppor tunity and has availed himself of the opportunity of show ing cause against the grounds, then the mere fact that there is an irregularity about the notice may not lead to the Court holding that the Government servant did not lave the opportunity required." It is in the light of this legal position that I have to consider the facts of this case. It was argued by Mr. Shams‑ul Ghani on behalf of the plaintiff that Nur‑ul‑Haq was not examined in the inquiry. His explanation was not necessary having regard to the fact mentioned in the charge sheet that he was half‑witted and the admission by the plaintiff of his entry in his explanation and final statement. There was therefore no defect in the first stage of the inquiry. As regards the second stage, Mr. Lewis who wrote the statement is dead. The plaintiff denies that Mr. Lewis informed him that he had found him guilty or to show cause against his dismissal. The plaintiff's signature on the second statement belies him. The inquiry officer had the power to dismiss the plaintiff and passed the order 5 days after the final statement of the plaintiff and the order will not be invalid on account of any irregularity in procedure. My finding on the first part of the issue is that section 240 of the Government of India Act will be inapplicable and that the provisions of the rule set out above were not contravened. The result is that the suit is dismissed with costs. A. H Suit dismissed.