P L D 1956 (W (PLP)

RAHMAN, C. J.‑‑This order concerns four writ petitions, presented by two officers of the Pakistan Army and two of the Air Force. Common questions of law, based on substantially similar provisions in the Pakistan Army Act, 1952 and the Air Force Act 1932, (hereinafter referred to as Army Act and the Air Force Act respectively) arise in these cases and it would, therefore, be convenient to dispose them of together. The cases were first put up for hearing before a Division Bench, but in view of the importance of the questions involved, they have been referred to a Full Bench for decision. Petitions Nos. 598 and 599 of 1955 are by Major Tahmas and Lieutenant S. M. Sibtain of the Pathan Regiment (F. F.) Lahore Cantonment. Both these officers were posted at Lahore in the 2nd Battalion of the Pathan Regiment. Certain charges pertaining to behaviour unbecoming an officer or acts prejudicial to good order and military discipline, were preferred against these two officers by the military authorities in March 1955. The petitioners' case' is that the Judge Advocate‑General's Department, after considering the summary of evidence recorded in the preliminary inquiry; came to the conclusion that there was no case for the petitioners to answer. The Commanding Officer, therefore, directed them to resume their normal duties whereas they had previously been placed under open arrest. Thereafter, on the 20th of July 1955, the petitioners received letters calling upon them to show cause why they should not be dismissed from service. Replies were submitted in answer to the notices and the petitioners claimed that they should be tried before a Court‑martial in accordance with the provisions of the Army Act. However, on the 4th of November 1955, in the case of Major Tahmas and on the 3rd of November 1955, in the case of Lieutenant S. M. Sibtain, orders of the Central Government were served on them dismissing the former and removing the latter from the Pakistan Army Service. These orders were challenged as ultra vires, inoperative, illegal and, therefore, null and void, and it was prayed that writs of mandamus and prohibition or any other appropriate writ be issued to the Central Government of Pakistan calling upon them to restore the petitioners to their offices, and restraining them from ejecting the petitioners from their army quarters. Writ petitions Nos. 9 and 110 of 1956, relate to Flying Officer K. U. Khalid and Flying Officer Inayat Ullah, respec tively. Flying Officer K. U. Khalid, was, according to his petition, commissioned in the Royal Pakistan Air Force in November 1950. In connection with a theft of parachutes from the hanger at the Royal Pakistan Air Force Station at Lahore, a Court of Inquiry was constituted and as a result, on the 17th of November 1955, the petitioner was informed by the Station Adjutant, Flight Lieutenant Yamin, that he had been dismissed by the Central Government under section 13 of the Air Force Act. Flying Officer Inayat Ullah had been commissioned in the Royal Pakistan Air Force on the 26th March 1950. This officer was called as a witness in the Court of Inquiry above referred to, convened to inquire into the causes of disappearance of parachutes in October 1954. On the 8th of November 1954, a signal was received from the Air headquarters to the effect that the petitioner was demoted to the rank of Flying Officer from that of Flight Lieutenant and was transferred to Kohat. Another Court of Inquiry was constituted in February 1955, in connection with the loss of the same parachutes and petitioner was re-summoned to give fresh evidence. On the 17th of October 1955, the petitioner was informed that he had been dismissed by the Central Government under section 13 of the Air Force Act. The two petitioners contended that the Court of Inquiry could not take the place of a trial by Court‑Martial and, therefore, the orders of their dismissal were bad in law, and, in any case, offended against the principles of natural justice It was prayed on their behalf that the orders of dismissal be removed by this Court and quashed and a writ of mandamus or any other appropriate writ be issued to the Central Government directing restoration of the petitioners to their offices till such time as a proper trial convened according to law finds them guilty. Section 16 of the Army Act is in the following terms:‑ " Dismissal or removal by Central Government.‑-- The Central Government may dismiss or remove from the service any person subject to this Act." The corresponding section in the Air Force Act is section 13, .1 which reads as follows:‑‑ " The Central Government may at any time dismiss from the service any person subject to this Act." It is not disputed that the first two petitioners are subject to the Army Act and the 3rd and 4th petitioners to the Air Force Act. It is further conceded that there is no specific provision in either Act, specially prescribing a procedure to be followed by the Central Government before passing an order under these sections. It is, however, contended that the schemes of the two Acts lead to the inference that no order of dismissal could be passed by the Central Government in the case of any of these officers, without there being a proper trial by Court‑martial or at least some inquiry at which opportunity should' have been afforded to the person in question to defend himself. As the Central Government's orders were not preceded by any such inquiry or trial, the orders in question were impugned as unwarranted by law. In the case of the Army Act, Mr. M. Anwar advanced the argument that the provisions of section 16 of that Act were controlled by those of sections 52 and

55. These sections are reproduced below:‑ 52. " Unbecoming behaviour.‑Any officer, junior com missioned officer or warrant officer, who behaves in a manner unbecoming his position and the character expected of him shall, on conviction by Court‑martial, be liable to be dismissed from the service or to suffer such less punishment as is in this Act mentioned." 55. " Violation of good order and discipline.--‑Any person subject to this Act who is guilty of any act, conduct, disorder .or neglect to the prejudice of good order and of military discipline shall, on conviction by Court‑martial, be punished with rigorous imprisonment for a term which may extend to five years, or with such less punishment as is in this Act mentioned." The two sections do not admittedly exhaust all grounds of dismissal of an officer subject to the Army Act. Other sections of the Army Act may have a bearing on the question of dismissal and Mr. M. Anwar, therefore, qualified his first statement by saying that section 16 may be subject, inter alia, to the provisions of sections 52 and

55. In section 62 of the Act, it is provided that where an officer, junior commissioned officer or warrant officer is sentenced to death, transportation or rigorous imprisonment, the Court‑martial shall, by its sentence, direct such officer to be dismissed from the service, so that dismissal will follow automatically, by order of the Court- martial itself, in the event of certain other punishments being inflicted. There is also section 17 of the Act which lays down that the Commander‑in‑Chief may dismiss or remove from the service any junior commissioned officer, or warrant officer, or any person enrolled under the Act, and an officer having power not less than that of a Brigade Commander or one not below the rank of Brigadier empowered by the Commander -in‑Chief in this behalf, may dismiss or remove from the service any person enrolled under the Act who may be serving under his command. If the Act is looked at as a whole, it transpires that its scheme is that in certain contingencies, a Court‑martial Eon impose the punishment of dismissal on persons subject to the Act after a regular trial that power is vested in the Central Government to dismiss or remove from service any persons subject to the Act and in the Commander -in‑chief, or certain officers below him, to dismiss other persons, apparently, without holding a trial or inquiry. There are no indications in the Act that the power given by n section 16, to the Central Government, is subject to any limitations, procedural or otherwise. At the apex of the pyramid of powers under the Act, an unfettered discretion appears to have been conferred on the Central Government by section

16. It is significant by way of contrast to consider the language of section 18, which relates to " retirement, release or discharge". The section provides that the prescribed authority may, in conformity with such rules as may be prescribed in this behalf, retire, release or discharge from the service any person subject to the Act. The omission of all reference to rules or other procedural sections of the Act itself, in section 16, cannot be lost sight of, and must be given its full legal effect. A similar position apparently obtains under the Air Force Act. As has been observed above, section 13 empowers the Central Government to dismiss from the service any person subject to the Act at any time. Section 14 vests power in the Air Officer Commanding Air Forces or any prescribed officer to dismiss from the service any person subject to the Act, other than an officer. Section 15 declares that the prescribed authority may, in conformity with the rules prescribed in this behalf, discharge from the service any person subject to the Act. Air Force offences are dealt with in Chapter IV which contains sections 31, to

58. Section 43, out of this group of sections, prescribes the punishment of dismissal from service in the case of any officer or warrant officer subject to the Act, who behaves in, a manner unbecom ing his position and character. Section 58 declares that if a person subject to the Act (unless he is not on active duty) commits any civil offence he shall be deemed to be guilty of air force offence and shall be liable to be tried by Court- martial for such offence. The chapters that follow deal with arrest and proceedings before the trial, constitution, jurisdiction and powers of Courts‑martial and the procedure of Courts‑martial. A Court‑martial can inflict any of the punishments mentioned in section 19 of the Act in appropriate cases. They range between death, dismissal and minor punishments. The scheme of the Act, therefore, is that for offences tried by Court‑martial a definite procedure has to be followed, but there is no indication in any part of the Act that a similar procedure has to be resorted to, before action is taken by the Central Government under section 13 or by the Air Officer Commanding the Air Forces, under section

14. Mr. Saleem, who argued the case on behalf of the Air Force Officers, conceded that there was no express provision in the Act to that effect. He, however, argued that dismissal was a punishment under the Air Force Act as mentioned in section 19, and, therefore, the idea of notice and opportunity for defence was implicit in the very word dismissal, as a principle of natural justice. According to him, the intention could not be imputed to the legislature that such a salutary principle should be violated with impunity. The argument was sought to be forfeited by reference to section 2 (2) of the Air Force Act and the corresponding section of the Army Act, which lay down that persons subject to these respective Acts shall remain so subject, until duly retired, released discharged, removed or dismissed from the service, The word "duly" occurring in these sections was stressed and Mr. Saleem raised the contention that the idea of a definite procedure being followed was comprehended by this expression. He referred to the words "due process of law occurring in the American Constitution, in the context of life liberty and property of the citizens of the United States, which, according to some text‑book writers, import the necessity of notice and opportunity to be heard. I do not think that the reference provides an apt analogy when we are considering the position of servants of the State, in whose case wholly different considerations of policy might arise. Chapter X of the Army Act and Chapter VIII of the Air Force Act deal with confirmation and revision of findings and sentences. These provide for review of orders of Courts‑martial by the Commanding Officer or by the Central Government in appropriate cases. If dismissal is to follow only after trial by a Court‑martial, which punishment may eventually have to be confirmed by the Central Government under the chapters referred to above, the provisions of section 16 of the Army Act and of section 13 of the Air Force Act, would apparently become redundant. Both the learned counsel could not suggest what cases would specifically fall within the purview of these two sections if the interpretation contended for by them was to be adopted. I have, therefore, reached the conclusion that these two sections are independent of the other provisions of the two Acts, and are not controlled by them. Under the British system of jurisprudence, which has been adopted in this country, it is a fundamental incident of the service of the Crown that such service is terminable at the pleasure of the Crown. The services of a Crown servant can be dispensed with by the Crown (the Crown should now be substituted by the word "State" in the context of our new Constitution) at any time, without assigning any reason and the servant could not take the matter to Court, unless so permitted by a specific statutory provision. The approach made by Mr. Saleem by the suggestion that this fundamental principle would be amply vindicated by discharge from service as distinguished from a penal dismissal and, therefore, dismissal should be hell to fall outside the purview of the rule, is, at first sight, attractive. The answer, however, is provided by the unequivocal language of the statute itself, which, in the case of the Army Act as well as the Air Force Act, confers unfettered discretion and power on the Central Government in the matter of dismissals of persons subject to the Acts. It seems that the policy of the law in respect of defence services is that questions relating to their dismissal by the Central Government should nor be justiciable. It is pertinent to remember that in the case of civil servants, section 240 of the Government of India Act, 1935, makes a special provision, giving protection to civil servants, against the rigours of this rule. If the legislature had been so minded, a similar protec tion could have been afforded to the military personnel, but this has not been done in the two Acts. The reason probably is that considerations of discipline and security are paramount in the case of the defence services which have to function not only in times of peace but also during war conditions, when inquiries or trials for certain kinds of behaviour may be calculated to jeopardise the security of the State itself. The position under English Law is well settled. Reference inter alia may be made to Mitchell v. The Queen (1 Q B 121), wherein the principle was laid down that no engagement between the Crown and any of its military or naval officers in respect of services either present, past or future, can be enforced in any Court of law, per Fry L. J., Lord Esher M. R. in that case observed as follows:‑ " I agree with Mathew, J., that the law is as clear as it can be, and that it has been laid down over and over again as the rule on this subject that all engagements between those in the military service of the Crown and the Crown are voluntary only on the part of the Crown, and give no occasion for an action in respect of any alleged contract." The remedy of taking such disputes as the one before us, to the ordinary Civil Courts is barred under English law to military personnel, and the position is not materially different in Pakistan. A similar view has been taken in a recent decision of the Punjab High Court (India) in Union of India v. Ram Chand Beli Ram (A I R 1955 Pb.166). Barring a specific statutory provision, the questions such as those raised in the present case, cannot be agitated in the Civil Courts. No legal right inhering in the petitioners has been infringed by the impugned orders and there is consequently no justification for invoking the extraordinary writ jurisdiction of this Court. I would, therefore, dismiss all the four petitions, but in the circumstances of these cases, would leave the parties to bear their own costs in this Court. K. B. A. Petitions dismissed.