P L D 1963 (W (PLP)

9. The Screening Committee was constituted under the Public Conduct (Scrutiny) Ordinance (Ordinance III of 1959) which empowered the Committee to regulate its own procedure. It was not bound to give that opportunity of showing cause which is contemplated under clause (2) of Article 181 of the late Constitution. It commenced proceedings against the petitioner but went out of office owing to the expiry of the Ordinance before concluding these proceedings. Moreover the notice that was given by it to the petitioner was cancelled by the Committee itself. But the explanation which was submitted by the petitioner in response to that notice was considered by another authority as if it was submitted in response to a notice issued by it. The new authority conducted some enquiry subsequent to it and came to the conclusion that the petitioner was to be removed from service. The charges which were framed by the Screening Committee were not framed by the new authority and there is nothing to show as to what acts and omissions of the petitioner were present to the mind of the new authority. One cannot say with any certainty as to what considerations and facts have induced the new authority to arrive at the conclusion that the petitioner should be removed from service. We are convinced from the manner in which Mr. Fazeel has resisted this petition that the new authority did not consider itself bound by the charges which were framed by the Sreenirg Committee and has acted in the belief that neither did the petitioner enjoy the pro tection of Article 181, nor reasonableness of the opportunity to show cause was their concern.

10. The new authority has not even complied with the terms of Regulation No. 480‑B which is as follows "Rules relating to the reduction, removal and dismissal of civilians employed in the Royal Indian Navy. The following rules apply to all civilians employed at Naval Headquarters R. I. N. Office, Bombay, and in R. I. N. Shore Establishments, as well as to all civilian employees, excluding casual daily paid labour, in H.M. I. Dockyard, Bombay:‑ (1) The Crown has the absolute right to terminate the services of any of its employees at pleasure and without assigning a reason, but the following instructions will be observed as far as possible. (2) Permanent servants should not be removed or dismissed except for a serious offence which has been clearly proved. (3) Cases of physical incapacity should be treated according to rules ; and as regards inaptitude for any particular branch of occupation the difficulty may frequently be overcome by a re‑adjustment of duties, so again, a man who is inefficient in one appointment may be capable of performing the duties of another. (4) Neglect of duty, inattention or disobedience renders a servant liable to reduction from a higher to a lower grade. (5) Continued and wilful neglect, or disobedience, gross inefficiency, fraud, dishonesty, gross misconduct, and offences involving moral disgrace should be visited with dismissal, or removal accordingly as it is considered necessary, or not, to bar the individual from re‑employment under Government. (6) Before a permanent public servant is removed, before a temporary public servant is removed during the period of his contract or without notice, if he is not serving under contract, and before a permanent or temporary public servant is dis missed, a copy of the charge and evidence should be delivered to him gratis. In the subsequent proceedings which should be reduced to writing, he should be given full liberty to cross- examine any witnesses against him, to call any witnesses and to make a statement in his defence ; and he should be furnished with a copy of the document containing the charges against him and the order thereon. In the event of the removed or dismissed servant appealing, a copy of this document, together with the evidence and statement in defence and his character roll or service book should be forwarded with the memorandum of appeal. Legal exactitude is not essential either in the framing of charges or in the admission of evidence and any evidence that leaves no reasonable doubt of an offender's guilt may properly be relied upon for determining the punishment. In this rule a public servant, includes a menial servant. (7) A dismissed servant should not be reinstated or re employed in any department of the State without the sanction of the Local Government or administration or head of a department. (8) A dismissal should only be notified in the Gazette :‑ (i) When it is necessary to notify the public of the removal from service of an officer whether because his appointment was previously gazetted or from any other cause, or (ii) When it is specially desired to exclude from re‑employment a public servant who has been dismissed for a heinous offence. (9) The authority who can appoint to a particular office has power to dismiss, remove, reduce or suspend from that office but an appeal lies from an order of dismissal or removal, etc., to the official superior to the officer who passes such order. (10) All civilians in R. I. N., employ holding or exercising any office other than a menial office are subject to the provisions of the Government Servants Conduct Rules. (11) Temporary personnel employed on monthly wages shall be entitled to one month's notice of discharge, provided dis charge is not (i) the result of disciplinary action ; (ii) at the individual's request ; (iii) due to inefficiency ; (iv) due to invalidment for causes within an individual's control. This rule applies to temporary personnel on the permanent establishment and not to temporary personnel engaged for limited periods." Mr. Fazeel did not take the stand that the instructions set out in the regulation were carried out but argued that they were to be observed only "as far as possible" which according to counsel meant that they could be disregarded.

11. It was with a view to satisfy rule 6 (5) (a) of the Govern ment Servants (Efficiency and Discipline) Rules, 1960 that counsel found himself in need of connecting the proceedings which were commenced by the Screening Committee with the subsequent proceedings. In this respect he drew our attention to the contents of the well written report which has been submitted to this Court by the Captain Superintendent P. N. Dockyard, West Wharf, Karachi. Paragraph 5 of the report says "Whilst this Article (480‑B) states clearly that the Government has the absolute right to terminate the services of any of its; employees at pleasure and without assigning any reasons, it lays down certain instructions which are to be observed as far as possible." In paragraph 6 it says "The observance of this procedure is not mandatory and does not necessarily: require any legal exactitude ; and any evidence that leaves no reasonable doubt of an offender's guilt may properly be relied upon for determining the punishment." From paragraphs 8 and 9 of the report it appears that there were complaints against the petitioner which were communicated to the Naval Headquarters for enquiry by the Screening Committee. The Screening Committee came to the conclusion that the conduct of the petitioner was unbecoming that of a Government servant, "but a statement of allegations, as required under clause (b) of the aforesaid sub‑rule was not forwarded, as the Committee considered, that, since the various incidents which led to this charge sheet being issued were investigated by the C. S. D. and were well within the knowledge of the petitioner, it was not necessary to do so". Subsequently an enquiry was conducted in which the petitioner and other persons were interrogated by the Committee which came to the conclusion that the charge of conduct "unbecoming that of a Government servant" has been substantiated against the petitioner and the petitioner was informed that the proposal was to retire him from service. But the decision of the Committee was subject to confirmation by the Government which was not feasible "during the short time available namely up to 30th June 1959". Paragraph 11 of the report shows that "The C. S. D., was later on directed by Naval Headquarters to take disciplinary action according to the normal practice against the petitioner amongst others. The formal investiga tions‑carried out by the Screening Committee, as stated above, on 24th June 1959, and at which not only was the C. S. D. present but took part in arriving at its decision‑was considered by the C. S. D., as a formal inquiry, required to be carried out under third stage vide sub‑rule (5) of rule

5. At such inquiries, it is permissible vide clause (a) to hold an oral inquiry and the aforementioned inquiry was considered by C. S. D., to be as such. Furthermore, at the formal inquiry, conducted by the Screening Committee and deemed by the C. S. D., as the `Oral Inquiry', the petitioner was given all the latitude required to be given to an accused whose conduct is under investigation according to the aforesaid sub‑rule (5) except that the proceed ing of this inquiry were not reduced in writing. It is, therefore, submitted that the third stage of the inquiry had been complied with." Paragraphs 12 and 13 of the report show that‑ "The C. S. D., was the authority competent to award the punishment of dismissal and he arrived at the decision after the formal `Oral Inquiry' as stated above, that the petitioner was guilty of `complicity in smuggling Government Stores out of the Naval Stores Depot'. This finding substantiated the Screening Committee's original charge‑sheet of the petitioner's conduct being unbecoming that of Government servant. The C. S. D., thereupon issued to the petitioner a show cause notice in terms of clause (b) of sub‑rule (6) of the aforesaid Rule 5 calling upon him to show cause as to why the proposed punish ment of removal from service be not inflicted upon him."

12. The above resume of the proceedings discloses that the Screening Committee carried out investigations in terms of the Public Conduct (Scrutiny) Ordinance (Ordinance III of 1959) to find out whether the conduct of the petitioner was unbecoming that of a Government servant. But the C. S. D., later on acted in terms of rule 5 of the rules annexed to a circular letter No. CP/0 302/54, dated 27th of May 1958, for coming to a conclusion as to whether the petitioner was liable to be removed from service in terms of regulation 480‑B of the Naval Regulations. The enquiry was mostly oral and the allegations on the basis of which the enquiry was made were not communicated to the petitioner because he was presumed to know them.

13. The above mixture of ideas, procedures, concepts of misconduct and of guilt as well as the change in the authority which took steps to propose punishment, could not enable the petitioner to reasonably clearly understand the point of view with which the proceedings were taken against him. He could not be confident of defending himself by steadily following one line of defence and has pointed the defects of procedure in detail in his explanation dated the 25th of May 1960. The only justifica tion for adopting the mixed procedure could be the convenience of avoiding the repetition of a good deal of what the Screening Committee had done already. This convenient procedure has been adopted at the expense of the petitioner's right to clearly under stand the charges and allegations of facts that were in the mind of the first authority and then in the mind of the other, and thus to deprive the proceedings of that character which could afford the petitioner a reasonable opportunity to show cause against the action that has been proposed against him.

14. The conclusion, therefore, is that the petitioner is entitled to the protection conferred by Article 181 of the late Constitution 1 and that he has not been afforded a reasonable opportunity to show cause against the proposed action to be taken in regard to him. The petition is, therefore, accepted and a writ in the nature of certiorari is to issue quashing the order dated the 13th of August 1960 to remove him from service. A. H. Petition accepted.