P L D 1955 Sind 357 (PLP)

LARI, J.--‑This is a suit for declaration that dismissal of the plaintiff from service of the Federation of Pakistan is ultra vires, illegal, void and. inoperative and that the plaintiff continues to be in service of the Crown as Upper Division Clerk. The main allegations in the plaint are that the plaintiff held a civil post under the Crown in Pakistan from 11th November, 1947 to 7th January, 1953 ; the plaintiff was at first appointed as a "E" grade clerk in the office of the Superin tendent of Police, Sind Railways, at Karachi under the Government of Sind on 11th November, 1947 with effect from 1st December, 1948 the plaintiff was brought on probation as "E" grade clerk with his lien in Sind Railways; that with effect from 1st November, 1951 the plaintiff was promoted to officiate as Uppef Division Clerk per orders No. GS/8‑26955 dated 20th November, 1951; while the plaintiff: was serving in the office 'of the Assistant Inspector General of Police, C. I. D., Karachi, the Deputy Superintendent of Police (Crime), C. I. D., Karachi framed and issued a charge sheet to the plaintiff on 29th July, 1952 ; that the departmental inquiry was held jointly against the plaintiff and another Head Constable Iqbal Ahmad Khan, as a result of the departmental inquiry the Assistant Inspector General of Police, C. I. D., Karachi dismissed the plaintiff from service with effect from 8th January, 1953 and that the dismissal was illegal and void in as much as the mandatory provisions of section 240 (3) of the Constitution Act were not complied with and the order of dismissal was also contrary to the provisions of section 240.(2) of the Government of India Act, 1935. The defendant the Federation of Pakistan filed a written statement in which the main allegations of the plaintiff were contested and it was alleged that the order of dismissal was in accordance with the Constitution Act as well as the Service Rules. It was denied that the order of dismissal had been passed by any authority other than the Inspector General of Police. The following issues were framed : [After setting out 10 issues and disposing of 5 the judgment dealt with issue No. 6]. Issue No. 6.‑--Was the order of the plaintiff's dismissal from service illegal, void, and inoperative for the reasons given in para. 16 of the plaint ? This is the only issue that arises in the case and has to be determined in the light of the allegations and submissions made at the bar. Really three points arise for determination in this case:

1. Who was the appointing authority in the case of the plaintiff ? Whether the Inspector General of Police or any subordinate official just like Superintendent of Police ?

2. Were the provisions of section 240 (3) of the Govern ment of India Act complied. It says: "No such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable oppor tunity of showing cause against the action proposed to be taken in regard to him."

3. Whether the plaintiff was dismissed by a competent authority ? It had not been alleged in the written statement that any authority other than the Inspector‑General of Police was com petent to dismiss the plaintiff. What had been asserted in the written statement‑was that it was the Inspector‑General of Police who had dismissed the plaintiff and not the Assistant Inspector‑General of Police, C. I. D., Karachi. But curiously enough the learned counsel for the Federation of Pakistan argued at the time of argument that it was the Superintendent of Police who was competent to dismiss the plaintiff. I find no warrant for this submission. Rule 34 of the Sind Civil Services Conduct, Discipline and Appeal Rules is relevant on this point. Note (1) says; "A Superintendent of Police may inflict all penalties on clerks in the "E" grade serving in his office." Note (2) says "The Inspector General of Police may impose all penalties referred to in Rule 33 on clerks of all grades serving in his own office." It is obvious therefrom that the Superintendent of Police cannot dismiss an Upper Division Clerk. This was in fact conceaded by the order of dismissal recorded by Mr. A. H. Mirza, Assistant Inspector‑General of Police, C. I. D., Karachi. Towards the end of the order of Mr. Mirza says "U. D: C. Azamuddin is dismissed from service with effect from 8th January, 1953, forenoon. Orders for his dismissal will, however, be subject to confirmation by the Inspector General of Police, Karachi who is the appointing authority for U. D. Cs." The order of appointment Exhibit 5/17 shows that it was the Inspector‑General of Police, Karachi who bad appointed the plaintiff as Upper Division Clerk. In the circumstances it must be held that it is the Inspector‑General of Police, Karachi who could appoint or dismiss the plaintiff. . Section 240 (3) of the Constitution Act says: "No such person 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." In this case a notice contemplated by section 240 (3) was given by Mr. A. H. Mirza, Assistant Inspector General, C.I. D., Karachi which says: "The charges, which were framed against you for mis conduct and unfitness for service, have been proved. Will you now show cause why you should not be dismissed from service ? " It is contended by the learned counsel for the Federation of Pakistan that this notice complies with the requirements of section 240 (3). It is admitted at the bar that the papers relating to the plaintiff had not been submitted to the Inspec tor‑General of Police upto this date. In fact the matter was not brought to the notice of the Inspector‑General of Police till 8th January, 1953. It is clear from the interpretation put on this section by their Lordships of the Privy Council in the case of The High Commissioner for India and another v. I. M. Lal (A I R 1948 P. C. 121 : P L D 1948 P C 150) that the appointing authority or the authority com petent to dismiss a Government servant should form tentative conclusions and it is on that basis that the notice under section 240 (3) had to be issued. Their Lordships of the Privy Coun cil approved the following observation of the Federal Court:‑ "It does however seem to us that the subsection requires that as and when an authority is definitely proposing to dismiss or reduce in rank a member of the civil service he shall be so told and he shall be given an opportunity of putting his case against the proposed action and as that opportunity has to be reasonable opportunity, it seems to us that the section requires not only notification of the action proposed but of the grounds on which the authority is proposing that the action should be taken and that the person concerned must then be given a reasonable time to make his representations' against the proposed action and the grounds on which it is proposed to be taken:" Naturally the authority mentioned in this observation is the authority which is competent to dismiss and not any other authority which is not authorised by law to dismiss a person. The same view has been taken by the Cabinet Secretariate. A copy of the directions issued on the point has been placed before me and it runs thus : -- "After the enquiry against a Government servant has been completed and after the punishing authority has arrived at a provisional conclusion in regard to the penalty to be imposed, the accused officer 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 This is the only reasonable interpretation that can be put on section 240 (3) of the Government of India Act. Conse quently it is the authority competent to dismiss a Government] servant which has to scrutinize the report and come to conclusion that some action in the nature of dismissal is warrant ed against the Government servant. It is a matter of admis sion that the Inspector General of Police, Karachi had not applied his mind when the notice Exhibit 5/11 was issued to the plaintiff. There is, therefore, no compliance with the mandatory provisions of section 240 (3) of the Constitution Act and the order of dismissal passed against the plaintiff must be held ultra vires and inoperative. In this case Mr. Mirza, Assistant Inspector‑General, C. I. D., Karachi recorded the order dated 8th January, 1953, in which he says :‑ -- "I dismiss H. C. Iqbal Ahmad Khan from service with effect from 8th January, 1953, forenoon. The orders passed regarding his suspension are confirmed U. D. C. Azamuddin is dismissed from service with effect from 8th January, 1953 forenoon. Orders for his dismissal will however be subject to confirmation by the Inspector‑General of Police, Karachi who is the appointing authority for U. D. Cs." The papers were sent to the Inspector‑General of Police, and the Inspector‑General of Police passed an order then and there saying 'dismissal approved.' Now it is contended by the learned counsel for the Crown that the order of dismissal had been passed by the Inspector‑General of Police and not the Assistant Inspector‑General, C. I. D., Karachi. The method adopted was a fraud on the provisions of section 240‑(2). What section 240 (2) requires is that it is the appointing) authority which should apply his mind to reach a conclusion and not that the subordinate authority should reach a conclu sion and pass a final order and it be confirmed by way of routine by appointing authority. In this case the effective order was passed by the Assistant Inspector‑General of Police and not the Inspector‑General of Police. The order of dis missal is bad on this account as well. [Issues 7 to 10 not material for the purpose of this report]. In view of my decision under issue No. 6 the plaintiff is entitled to the relief claimed. The suit is accordingly decreed with costs. A. H. Suit decreed.