P L D 1957 (W (PLP)

AKHLAQUE HUSAIN, J.‑

Sayyed Muhammad Ayyub, P. S. E., Executive Engineer, P. W. D., Irrigation Branch, Punjab, has filed the Writ Petition No. 309 of 1956, challeng ing an order of the Government of West Pakistan, dated the 2nd of July 1956, suspending him from service. Similarly, Ch. Mazhar Ali, an Assistant Executive Engineer in the same Department, has by Writ Petition No. 312 of 1956, challenged the order of his suspension, dated the 4th of July 1956. As the facts and the grounds of complaint in both the petitions are almost identical, the two petitions are being disposed of by one order. The petitioners allege that the orders of suspension were served upon them "all of a sudden" and complain, inter alia, "that there is no provision in the terms and conditions of the service of the petitioner which may warrant his suspension in the circumstances submitted above." These "circumstances" have not been denied by the respondent, the Government of West Pakistan, and may be reproduced from paras 3 (a) of the two written statements of the respondent which are couched in identical language:‑-- "Para 3 (a). This case was started on receipt of a pseudonymous application from one S: U. Butt containing 13 allegations against the petitioner while he was Executive Engineer, Marala Division, and Mr. Mazhar Ali, his S. D. O. Since Marala Division in these days was in Upper Chenab Canal Circle, a report was called for from Superintending Engineer, Upper Chenab Canal Circle; (Mr. Hakim) who investigated the case and was of the view that ten of the facts and allegations stated in the petition were correct and that the case should be investigated into by ‑the Irrigation Branch Inquiry Agency. The case was given to Irrigation Branch Inquiry Agency, but it was still not finalised when the Inquiry Agency was closed. Four of the allegations were then sent to Superintending Engineer. Link Circle, (Mian Alim‑ud‑Din), as Marala Division had been trans ferred to the Link Circle, for investigation. Mian Alim ud‑Din was of the view that the officer had cleared his position regarding three of the charges and the fourth charge could not be investigated into by him. The case went up to the Additional Chief Engineer (Operation), who decided on his own to stop the case. Government was not however informed. In a separate case of confirmation referred to Government on 3rd February 1956, however, Government sent for the file of inquiry on 14th February 1956 and it was decided by the Government in the Development and Irrigation Depart ment on 14th March 1956 that the case should be investigat ed by one of the Additional Chief Engineers. Chief Engineer ordered Chaudhri Muhammad Nazir, Deputy Chief Engineer, to enquire into it against the orders of the Government. Mr. Farrant, Additional Chief Engineer, thereupon asked for extension of period of probation of Mr. Mazhar Ali for two years under rule 14 P. S. E. Class I and six months in addition in relaxation of rule 14 P. S. E. Class 1 on 8th August 1956. This case thus went up to Government who on 23rd April 1956, ordered that the allegations be investiga ted into by the Anti‑Corruption Department instead of the Additional Chief Engineer and further that the petitioner be suspended along with Mr. Mazhar Ali, petitioner in Writ Petition No. 312 of 1956 (order copy appendix 1)." The allegations in the petitions that the suspension orders were served on the petitioners all of a sudden and that they were "at no stage informed of any accusation against (them), nor (were they) ever charge‑sheeted at all or asked to take part in any proceedings or inquiry" were not denied. The petitioners contend that in view of the rule 13'25 in the Manual of Administration of P. W. D Irrigation Branch, the conditions necessary for their suspension have not come into being. This rule runs as follows:‑-- "13'25 (i) When the investigating officer is satisfied that only "reduction", "removal" or "dismissal" will meet the case, he must take action under rule 55 of the Civil Services (Classification, Control and Appeal) Rules or rule 14'13 of Civil Services Rules (Punjab) Volume I, Part I. If dismissal is likely to result, or it is advisable, in order to prevent the official from tampering with documentary or other evidence, he should be suspended by competent authority (See Fundamental Rules 53‑55 or Rules 7'2‑7'4, Civil Services Rules (Punjab), Volume I, Part I. and Punjab Public Works Department Code, paragraph 1'34. (ii) Action under Rule 55 of the Civil Services (Classi fication, Control and Appeal) Rules, or Rule 14'13 of Civil Services Rules, (Punjab), Volume I, Part I, should not be taken unless there is a clear case, and the investi gating officer is reasonably satisfied that he can establish the charge." Learned Assistant Advocate‑General, appearing for the West Pakistan Government, replied that as the petitioners hold their offices during the pleasure of the Governor, the Government have an` unfettered right to suspend them. It was not denied by him that the rule just quoted must be treated as a rule under Article 182 (2) of the Constitution. What the learned Advocate intended to argue appears to be that the rules framed under that Article are not binding on the Government and that the pleasure of the Governor overrides them. This is the usual argument which has been advanced from time to time since 1937 and is based upon a ruling of the Privy Council in that year in the well‑known case of Venkata Rao v. Secretary of Sate (AIR 1937 P C 31). It was laid down in that case that the rules made by the Secretary of State under subsection (2) of section 96‑B of the Government of India Act, 1919‑a provision analogous to Article 182 (2) of the Constitution of the Islamic Republic of Pakistan‑were not enforceable in Courts and that no redress for their breach could be obtained by action. It is a question whether the rules framed under Article 182 (2) of the Constitution are in law at par with those made by the Secretary of State under the Government of India Act, 1919. The language employed in the two provisions is significantly different. Two considerations weighed con siderably with the Privy Council in Venkata Rao's case. The first was that "the rules are manifold in number and most minute in particularity and are all‑ capable of change". But statutory law dealing with the terms and conditions of Government servants, which would be unquestionably binding under the Constitution and was so under the Government of India Act, is also capable of change. And there does not appear to be any legal or rational principle for holding statutory rules as not legally binding simply because. they happen to be "manifold in number and most minute in particularity". The real test of their binding character is the intention of the Legislature. The second and by far the more important, consideration which led their Lordships to the conclusion arrived at by them was: "There is another consideration which seems to their Lordships to be of the utmost weight, Section 96‑B and the rules make careful provision for redress of grievances by administrative process and it is to be observed that sub section (5) in conclusion reaffirms the supreme authority of the Secretary of State in Council over the Civil Service." There is no provision in our Constitution corresponding to subsection (5) of section 96‑B which read : "No rules or other provisions made or confirmed under this section shall be construed to limit or abridge the power of the Secretary of State in Council to deal with the case of any person in the Civil Service of the Crown in India in such manner as may appear to him to be just and equitable, . . . . . ." This. unlike any provision in Article 132, expressly made the authority of the Secretary of State supreme over the rules framed by him under subsection (2) which provided : "The Secretary of State in Council may make rules for regulating the classification of the Civil Services in India, the methods of their recruitment, their conditions of service, pay and allowances, and discipline and conduct." Article 182 (2), unlike subsection (2) of section 96‑B, does not leave it to the Authority to make or not to make rules. Nor does it merely say that the rules are only to "regulate" the conditions of service etc. It says : "Except as expressly provided by the Constitution, or an Act of the appropriate legislature, the conditions of service of persons serving in a civil capacity shall subject to the provisions of this Article, be such as may be prescribed".‑ Article 180 of the Constitution provides:‑-- "Except as expressly provided by the Constitution‑

(b) every person who is a member of a Civil Service of a Province or holds any civil post in connection with the affairs of a Province, other than a person mentioned in para graph (a) of this Article, shall hold office during the pleasure of the Governor." It will be noticed that the pleasure of the Governor is, by this Article, limited by express provisions of the Constitution. Article 181 expressly provided certain safeguards against unauthorised or arbitrary dismissal or removal from service or reduction in rank. Article 182 (1) specifies the authority which alone can make appointments. Article 182 (2) expressly provides that the conditions of service shall be governed by such rules as may be made by the appropriate authority. The first proviso lays down : "It shall not be necessary to make rules regulating the conditions of service of persons employed temporarily on the condition that their employment may be terminated on one month's notice or less ; and nothing in this clause shall be construed as requiring the rules regulating the conditions of service of any class of persons to extend to any matter which appears to the rule‑making authority to be a matter not suitable for regulation by rule in the case of that class". Can it be said (1) that it has been left to the dis cretion of the authority not to make any rule at all regarding the conditions of service and (2) that such rules when made do not possess a binding character ? As regards the second question the language of the second clause seems to clean, indicate that the rules are binding. It is true that a discretion is given to the authority not to extend the rules to any matte which appears to it not suitable for regulation by rule in the case of that clause; but the discretion does not extend to no making the rules at all. Again, the expression "shall no be necessary" and "nothing in this clause shall be construes as requiring" also seem to indicate that the making of the rules is necessary and is required by the clause. The second proviso places certain statutory restrictions and obligation; upon the authority in making the rules. It does not seers possible to hold that Article 182 does not "expressly provide" within the meaning of Article 180, for the making of the rules and for conferring upon them a binding character in law, that be so, it would necessarily follow that the pleasure of the Governor has been expressly made by the Constitution subject to the rules which he is required to make under Article 18% and that ultimately his "pleasure" would be operative only to such extent as the rules, which have to be made in accordance with the directions contained in the Article, may permit or in the cases specified in the first proviso, Again, it would hardly be possible to argue that an Act of the appropriate legislature dealing with the conditions of service would riot, under Article 182, be binding on the Government; and apparently the intention of the Article is to place the rules on the same level as such an Act. The two earlier Privy Council rulings referred to in Venkata Rao's case may now be briefly considered. Shenton v. Smith (1895 A C 229) was a case relating to a person in the service of Western Australia. It was held that " a Colonial Government is on the same footing as the Home Govern ment as to the employment and dismissal of the servants of the Crown ; and in the absence of special contract they hold their offices during the pleasure of the Crown ". This ruling will apparently be inapplicable to the instant cases because under the Pakistan Constitution the pleasure of either the President or of the Governor is not unlimited and unfettered. It is, however, noteworthy that it was recognised that even in England the pleasure of the Crown could be limited by a contract between the Crown and its servants. The following sentence in the judgment is significant: " They (their Lordships) consider that, unless in special cases where it is otherwise provided servants of the Crown hold their offices during the pleasure of the Crown ; not by virtue of any special prerogative of the Crown but because such are the terms of their engagements, as is well‑understood throughout the public service ". This assumes that in England, and in the Colonies, there were no statutory provisions or rules restricting the pleasure of the Crown. In Pakistan such provisions are contained in the Constitution and the rules framed thereunder. Certain regulations, which were apparently made by the Secretary of State for the Colonies and not under any Statute, were invoked by the Crow: servant in that case and as regards them their Lordships said : " There are merely directions given by the Crown to Governments of Crown Colonies for general guidance, and . . they do not constitute a contract between the Crown and its servants ". Our constitution does not say, directly or indirectly, that the rules framed under Article 182 are only for general guidance. It expressly says that the conditions of service‑apparently both from the point of view of the Government as well as of its servants‑shall be such as laid down by the rules. In Gould v. Stuart (1896 A C 575) decided by the Privy Council in the following year, it was held " that certain provisions of the New South Wales Civil Service Act of 1884, being manifestly intended for the protection and benefit of the officers are inconsistent with such a condition (namely that of the power of the Crown to dismiss at pleasure), and consequently restrict the power of the Crown in that respect ". This case is apparently more apposite to the present cases because the rules made under Article 182 (2), being manifestly intended for the protection and benefit of the Government servants, are inconsistent with the unfettered pleasure of the Governor. It will thus be seen that the ruling in Venkata Rao's case, decided with reference to the provisions of the Govern ment of India Act, 1919, is distinguishable from cases which fall to be decided in accordance with the provisions of the Constitution of Pakistan. In the present cases, how I ever, we are asked to exercise our extraordinary jurisdiction under Article 170 of the Constitution and it is not, therefore necessary to decide whether the rights secured to the petitioners by the rules made under Article 182 (2) are enforceable in a' Court of law by action. It is now a firmly established principle that a High Court may, under Article 170.1 grant redress in an appropriate case even when none is available by way of any usual action or proceedings; and that a manifest: wrong or injustice to a citizen shall be relieved. Even if the rules were of the same nature as those in Venkata Rao's case, the High Court will take notice of them while exercising its jurisdiction under Article 170 because the Constitutional provision under which they were made must at least be regarded, in the words of their Lordships of the Privy Council, " as con taining a statutory and solemn assurance that the tenure of office, though at pleasure, will not be subject to capricious or arbitrary action but will be regulated by rule ". More over, the pleasure of the President or of the Governor cannot, under our Constitution, be regarded as inclusive of capriciousness or arbitrariness. The relevant rule, quoted in the beginning of this judgment, expressly gives the Government the power to suspend its servants during the pendency of enquiry into charges against them ; but even in the absence of such a rule we should have found no difficulty in holding that such of the pleasure of the Government which has not, been taken away by the Constitution or by the rules thereunder must be deemed to include the power of suspension within reasonable limits. This Court will not interfere with the exercise of that power so as to substitute its own judgment for that of the Government. It is not concerned with the question whether the power has been correctly or incorrectly, wisely or unwisely, exercised. It will step in only when some legitimate and substantial interest of a public servant has been adversely affected by an arbitrary, capricious or a manifestly improper or unreasonable use of that power. We have, therefore, to see whether; in the circumstances of the present cases, some clear injustice has been done to the petitioners by an abuse of the Government's power. Before considering the facts and circumstances of these cases we might dispose of another contention of the learned Assistant Advocate‑General that the Government's power to suspend rests upon public policy. For this he relied upon a ruling of the Calcutta High Court reported in Secretary of State v. Surendra Nath Goswami (A I R 1938 Cal. 759) which is based upon the decision in Dunn v. The Queen ((1896) 1 Q B 116), which in its turn relies upon the ruling of the House of Lords in De Dohse v. Regina ((1886)3TLR114) where Lord Watson observed " I am of opinion that such a concluded contract . . . must have been held to have imported into it the condition that the Crown has the power to dismiss. Further I am of opinion that, if any authority representing the Crown were to exclude such a power by express stipulation, that would be a violation of the public policy of the country and could not derogate from the power of the Crown except in cases where there is some statutory provision for a higher status ". In England, Crown's pleasure has its origin in Common Law, and not in any Statute ; and can therefore, be considered as a, matter‑of public policy. In Pakistan that power or pleasure is given to the Governor by the Constitution and must, therefore, as indeed expressly provided by Article 180, be exercised in accordance with the provisions of the Constitution. Moreover, only over whelming considerations can induce the Courts to hold that an alleged public policy should prevail against justice and equity. It is admitted by the respondent that as many as thirteen allegations were made against the petitioner through a pseudonymous application made as far back as 1952 ; that they were investigated into from time to time through different agencies ; that ultimately the Superintending Engineer found that there was no substance in any of the charges excepting one which, for some reason, he himself was unable to investigate; that the Additional Chief Engineer finally decided to close the case and that the petitioners were, all of a sudden, suspended by an order of the Deputy Secretary to the Government of West Pakistan dated the 25th June 1956. It is further admitted that so far no charges have been intimated to the petitioners; nor any explanation demanded from them. This clearly shows that the investigation has not reached even that stage where definite charges could be formulated and an explanation demanded from the petitioners. It is only in the event of the explanation being found unsatisfactory that a regular enquiry could be started; and, according to rule 13.25, suspension is to be resorted to either at a late stage of such an enquiry when it becomes clear that the proceedings are likely to lead to removal or dismissal, or if there is an apprehension that the petitioners are likely to tamper with the evidence. In the latter eventuality the petitioners could also be transferred to some far away place instead of being suspended. No allegation was made either in the written statements or during the arguments that the peti tioners had attempted, or were likely to attempt, to tamper with the evidence; and no regular enquiry into the alleged charges has yet been instituted. Want of strict compliance with rule 13'25 alone may not have induced us to interfere. But the entire circum stances of these cases clearly show an arbitrary exercise of the power of suspension in disregard of all principles of fairness and justice. The allegations against the petitioners were made to the authorities nearly five years ago and the petitioners have now been kept under suspension for nearly ten months without having been furnished any opportunity of refuting or explaining away the allegations against them. Nor is this all. As far back as the 3rd of July 1956 this Court drew the attention of the Government to consider the advisability of suspending the orders of suspension. They refused to do so. At the hearing we enquired from the learned Assistant Advocate‑General whether the Govern ment were prepared even now to lift the suspension and he informed us, after consulting the authorities concerned, that the Government are not willing to do so and that they want a clear ruling from this Court regarding their power to suspend public servants from service. We have no hesitation in saying that the power is not absolute and unfettered. The Constitution gives no recognition to despots and despotism. Every power, if not controlled by a statutory provision, is in the last resort subject to fundamental principles of justice and fair-play. The present petitioners are being deprived of 3/4th of their pay for the last ten months in an unquestionably unfair manner. In view of the circumstances of the present case we are constrained to hold that the suspension orders were arbitrary and mani festly unfair and must be set aside. We, therefore, direct; the respondent to withdraw them with effect from the dates they were made. It will, of course, be open to the Govern ment to transfer the petitioners if they like, or to suspend them again if future developments, if any demand it. The petitioners shall have their costs of these proceedings against the respondent. S. A. RAHMAN, C. J.‑

I agree with the order proposed by my learned brother in this case. As has been pointed out by him, the circumstances brought out in the affidavits of the parties would clearly justify such an order even if it could be assumed without deciding that the pleasure of the Crown cannot be curtailed to the extent of allowing right of action to aggrieved State servants, on the basis of statutory rules, in the ordinary Civil Courts. The writ jurisdiction of this Court can be certainly invoked by such a servant who complains of infraction of statutory rules to his prejudice, without any reasonable justification as in the present case. A.H. Petitions accepted.