P L D 1957 Azad J & K 33 (PLP)

F. H. SHAH, C. J.‑

This is the Azad Jammu and Kashmir Government, defendant's appeal against Alhaj Sheikh Muhammad Salim plaintiff, who succeeded in obtaining a declaratory decree to the effect that "the order suspending him from service issued under letter No. 7076/Cab/52 dated the 7th January 1952, the order for second enquiry against him issued under Council Order No. Anti‑corrup /1/SG/52 dated the 29th February 1952 and the Council Order No. 353/54 dated the 20th October 1954, discharging him from service are all illegal and ineffective against him and that he continues to be the Inspector‑General of Police even after the 7th January 1952, and is entitled to all the rights and privileges and emoluments attached to this post "from my brother Khan Abdul Hamid Khan, J. sitting on the original civil jurisdiction of the High Court by order dated the 6th February 1957. The Government filed this appeal on the 25th February 1957, which was presented on behalf of it by Khawaja Muhammad Shaft, Advocate. The power of attorney in favour of Khawaja Muhammad Shafi, Advocate is signed by Mr. Aziz Hassan, Secretary General, Azad Jammu and Kashmir Govern ment.

2. A preliminary objection was taken by Sardar Muhammad Iqbal. Advocate for the respondent that the Secretary General had no authority to file this appeal. He relied on the provisions of Order XX VII, rule 1, Civil P. C. in support of his contention, which lays down "in any suit by or against the Government, the plaint or written statement shall be signed by such person as the Government may by general or special order appoint in this behalf and shall be verified by any person, whom the Government may so appoint and who is acquainted witn the facts of the case". It was urged that it did not appear from the record that Mr. Aziz Hassan, Secretary General, had been appointed by a general or special order to file this appeal. This appears to be correct so far it goes but an appeal is really a continuation of the suit. The plaintiff himself served his notice under section 80, Civil P. C. to the Secretary to the Government "Police" and in response Mr. Aziz Hassan, Secretary General put in the written statement on behalf of the Government, having signed and verified it. He engaged Mr. Iqbal Ahmad Siddiqi, Advocate to defend the suit on behalf of the Government and signed the power of attorney in favour of him under his designation as Secretary General, Azad Jammu & Kashmir Government. If Mr. Iqbal Ahmad Siddiqi were to file this appeal, it would not have been necessary for him to obtain a fresh power of attorney. The fact that a different Counsel were engaged has given an opportunity to the respondent to raise this objection which he ought to have raised at the time of the trial. His having not done so at the proper stage, I think, it must be held that the technical objection must be deemed to have been waived not only during the trial stage but during the appeal stage also. Not taking of this objection at the earliest stage may have been due to inadvertence and not due to a deliberate intention to have a weapon up ones sleeve but the result would be the same namely, that the objection will be deemed to have been waived. This preliminary objection is, l therefore, overruled.

3. As regards merits, the pleadings of the parties are fully set out in the judgment of the learned Single Judge and may be briefly recapitulated. The plaintiff‑respondent alleged that he was a Gazetted Officer during the Dogra regime and that in 1948, he was appointed as permanent Inspector General of Police in which capacity he worked till 7th January 1952, was suspended from service on certain allegations of corruption and nepotism and that on the 29th February 1952, he received a charge‑sheet setting out charges against him and intimating him that a Commission had been appointed to hold an enquiry against him under section 3 of Public Servants Enquiry Act and that on the basis of the report of the Commission, the Government by its order dated the 20th October 1954, communicated to him that he was discharged from service in the interest of the administration holding him to be entitled to proportionate pensionary allowance, if provided under the rules. He, further, alleged that on a previous occasion, he had received a charge‑sheet on the 18th March 1951, from an Enquiry Board, consisting of the Ministers of Police and Transport, in respect of the self‑same charges and the Ministers held an enquiry against him and submitted their report to the Azad Jammu & Kashmir Government, on which the Government had by order dated the 25th November 1951, administered only a warning to him and had finally disposed of the case. He pleaded that the order suspending him from service was illegal, not having been passed by the Council as required by law and so was the order of the second enquiry illegal, firstly because the order was not passed by a competent authority and secondly because no enquiry could be held for the second time for the same offence and that the order of suspension and the holding of the second enquiry was "illegal, mala fide, oppressive, opposed to natural justice and without jurisdiction, therefore the consequent order discharging him from service too was illegal and ineffective". Hence, he was entitled to the relief prayed for (which was granted to him in the terms set out above).

4. The defendant appellant admitted that the plaintiff- respondent was a permanent Inspector General of Police but averred that he was suspended on account of misconduct by a competent authority, who validity appointed the Commission under the Public Servants Enquiry Act of 1977 and that the plaintiff was rightly discharged from service by order of the Government dated the 2nd November 1953, with which order the Council of Ministers agreed by their order dated the 20th October 1954. It was, further, pleaded that the charges in the first enquiry were not the same and that the first enquiry was not a regular enquiry under the Public Servants Enquiry Act and that in that enquiry all the charges in the subsequent charge‑sheet were not included. Lastly, it was pleaded that the powers of the Government regarding suspension and removal from service could not be challenged in a Civil Court.

5. I find that the learned trial Judge did not record the statements of the parties before the issues which finally took the following shape:‑ (1) Whether the order dated the 7th January 1952, suspending the plaintiff from service was not passed by a competent authority? . . . . . . O. P. P. (2) Whether the order dated the 29th February 1952, for enquiry under the Public Servants Enquiry Act against the plaintiff by the Commissioner was not made by a competent authority? If so, what would be its effect on the present suit? . . . O. P. P. (3) Whether in view of the Council Order No. 559/51 dated the 25th November 1951, a fresh enquiry under the Public Servants Enquiry Act could not be held because the previous enquiry too was held under the Public Servants Enquiry Act? . . . O. P. P. (3a) Whether the charges dated the 29th February 1952, before the Commission and the charges dated the 8th March 1951, were identical and if so what would be its effect on the present suit? . . O. P. P. (3b) Whether the charges dated the 29th February 1952, proceeded on the same facts or allegations in respect of which an enquiry had already been held and the matter had been finally disposed of and if this is so, what would be its effect on the present suit? . . . . . O. P. P. (4) Whether the order dated the 2nd November 1953, which was ratified subsequently by the Council on 20th October 1954, was mala fide, oppressive, wanton, inoperative, ultra vires, opposed to natural justice and illegal against the plaintiff? . . . . . . O. P. P. (5) Whether the plaintiff cannot at all challenge the authority of the Government for suspending and removing him from service? . . . . O. P. P.

6. Only the plaintiff‑respondent appeared in the witness box and supported his plaint. He got some documents brought on the file having had them produced by the defendant-appellant. These documents are 16 in number and there is another document, namely, the finding of the President dated the 7th July 1953, on the report of the Commissioner, which has not teen marked as an exhibit, but which appears to have been produced by the defendant and on which there is an order by the learned Single Judge dated the 1st December 1956, that the same be placed on the file. This is all the evidence in the case.

7. Issue No. S: Issue No. 5 was taken‑up first before the learned Single Judge and the learned counsel of the parties have followed the same course in appeal. The battle raged practically for the whole day on his issue which in fact is whether the plaintiff's claim against the Government is at all actionable. It is a pity that before the learned Single Judge only the point of view of the plaintiff‑respondent was placed and naturally the learned Single Judge accepted the same by holding in the plaintiff's favours "since nothing has been pointed out to the contrary, I have no hesitation in holding for the reasons stated above that the Government employees here in Azad Kashmir do not hold office at the pleasure of the Government and can only be suspended, removed or dismissed for good and sufficient reasons and this being the case, if anybody infringes this right, they can claim redress in the Civil Court". The learned Counsel for the appellant attacked this finding on the ground that the rule had been stated too widely and that though there is no express provision in any statute in force in this territory that the civil servants hold office at the pleasure of the President or the Government, as the case may be, yet following the Universal Law on the point, as observed by almost all the civilized nations, it will have to be held on grounds of public policy alone that the civil servants in this country hold office at the pleasure of the Head of the State. He pointed out that at least in respect of certain persons, the Rules of Business specifically provided that they will hold office during the pleasure of the Head of the State; for example, the Chief Justice and Judges of the High Court are held in Rule 8 of Rules ‑of Business as being appointed by and to hold office during the pleasure of the Supreme Head, who has the authority to nominate the President and other Members of the Council also (Rule 5). The learned counsel then proceeded to cite the case law on the subject. In Venkata Rao v. Secretary of State (A I R 1937 P C 31), the two leading cases on the subject, namely, Shenton v. Smith (1895 A C 299) and Gould v. Stuart (1896 A C 575) were referred. In the former case Doctor Smith held office in Government service in Australia and relied upon certain rules and regulations of the service as an essential part of his contract of service. He was dismissed and brought an action for damages which failed. On appeal to her Majesty in Council, Lord Hobhouse, in giving their Lordships' judgment, said:‑ "It appears to their Lordships that the proper grounds of decision in this case have been expressed by Stone, J. in the Full Court. They 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 engagement, as is well understood throughout the public service. If any public servant considers that he has been dismissed unjustly, his remedy is not by a law suit, but by an appeal of an official or political kind . . . . . As for the regulations, their Lordships again agree with Stone, J. that they are merely directions given by the Crown to the Governments of Crown Colonies for general guidance, and that they do not constitute a contract between the Crown and its servants." In the latter case Gould v. Stuart, it was held by their Lord ships of the Privy Council that the respondent Stuart held office in new South Wales under certain conditions expressly enacted in the body of New South Wales Civil Services Act and that these express provisions of the statute were "inconsistent with importing into the contract of service the term that the Crown may put an end at its pleasure." Of course, in England, the Common Law rule is that a civil servant holds office at pleasure of the Crown, "though in practice he is a permanent official and is never removed except for misconduct or inefficiency. It is an implied term of the service of every Crown servant that he can be dismissed by the Crown at pleasure. Even if there is a special contract with him that he would be in office for a certain term that contract is 5 deemed to be contrary to public policy and not binding on the Crown. See Leaman v. Rex ((1920) 3 K B 663; 89 L J K B 1073), in which Acton, J. quoted the following from Mitchell v. R. ((1896) 1 Q B 121 N): "All engagements between those in the military service of the Crown and the Crown are voluntary only on part of the Crown, and give no occasion for an action in respect of an alleged contract." (29) "Through the engagements referred to are with men in military service, the same rule applies to engage ments with all other servants of the Crown. If however; "the term of the appointment definitely prescribe a term and expressly provide for a power to determine 'for cause' it appears necessarily to follow that any implication of a power to dismiss at pleasure is excluded. This appears to follow from the reasoning of the Board in Gould v. King." ((1934) A C 176) "What is a common law rule in England is a statutory rule in India. In the Government of India Act of 1919 and also in the Government of India Act of 1935 it is expressly laid down that every member of a Civil Service of the Crown in India holds office during His Majesty's pleasure; vide sections 96‑B and 240 respectively of the two Acts. Though the Crown has liberty to dismiss a servant at pleasure, it is possible for the liberty to be restricted or qualified. It is here both restricted a qualified. No question of public policy would arise when the Legisla ture itself restricts the Crown's liberty." Per Desai, J. in A I R 1950 All. 210 at p. 220."

8. Apart from the above, almost all the other reported Indian and Pakistan authorities on the subject were cited. Of course, these authorities have interpreted the statutory provi sion of the Constitution, namely, section 99‑B of the Govern ment of India Act of 1919 and section 240 of the Government of India Act of 1935 and also on the present Constitution of India and Pakistan relating to similar provisions. We are not here concerned with these interpretations but section 240 may be reproduced to show the course of office of persons employed in civil capacities in India. It lays down: (1) Except as expressly provided by this Act, every person who is a member of a civil service of the Crown in India, or holds any civil post under the Crown in India, holds office during His Majesty's pleasure. (2) No such person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed. (3) No such person as aforesaid 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: Provided that this subsection shall not apply:‑ (a) where a person is dismissed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or (b) where an authority empowered to dismiss a person or reduce him in rank is satisfied that for some reason, to be recorded by that authority, in writing, it is not reasonably practicable to give to that person an opportunity of showing cause. (4) Notwithstanding that a person holding a civil post under the Crown in India holds office during; His Majesty's pleasure, any contract under which a person, not being a member of a civil service of the Crown in India, is appointed under this Act to hold such a post may, if the Governor- General, or, as the case may be, the Governor, deems it necessary in order to secure the services of n. person having special qualifications, provide for the payment to him of compensation if before the expiration of an agreed period that post is abolished or he is, for reasons not connected with any misconduct on his part, required to vacate that post.

9. Similarly, the recent authority of the Supreme Court of Pakistan, Noor‑ul‑Hassan v. Federation of Pakistan (P L D 1956 S C (Pak.) 331) was cited to show as to what were the general legal principles which governed the tenure of office of the servants of the Crown and which are applicable to the servants of the State under the new Constitution. Muhammad Munir, C. J., has given an admirable summary of these at page

337. His Lord ship stated.‑--"Formulated as general proposition they are: (1) that unless otherwise provided by law, tire Crown has the right to dismiss its servants at pleasure; (2) that all persons who held civil costs under the Crown before the Constitution Day and were governed by section 240 of the Government of India Act, 1935, held their office during the pleasure of the Crown; (3) that no such servant could maintain a suit for compensation or arrears of salary on the ground that some provision of the Government of India Act had not been complied with in dismissing him, though he could bring a suit for a declaration that some constitutional provision not having been complied with in dismissing him the dismissal was inoperative and that despite such dismissal he continued to be in the service of the Crown; (4) that no person holding civil post under the Crown could be dismissed by an authority subordinate to that by which he was appointed and that he could only be dis missed or reduced in rank if he were given a reasonable opportunity of showing cause against the action proposed to be taken against him; (5) that unless the order was by the Governor‑General or by the Governor such person had at least one right of appeal from the order terminating his services; (6) that an order of removal was tantamount to an order of dismissal; (7) that as regards constitutional limitations on the dismissing authority's power, there was no difference between a permanent and a temporary servant; (8) that, subject to a qualification to be mentioned later, other restrictions on the dismissing authority's powers, including the procedure which such authority was required to follow, that were imposed by the rules made under the Government of India Act were not a part of the contract of service in the sense that a breach of them could furnish a cause of action to the dismissed servant; (9) that so far as police officers of the subordinate ranks were concerned, their conditions of service were determined by or under the various Police Acts which could authorise an authority subordinate to that which appointed a police officer to dismiss him, and could also vary the rule in sub section (3) of section 240 of the Government of India Act that a servant of the Crown, before he was dismissed, was entitled to a reasonable opportunity to show cause against his intended dismissal."

10. It was urged that the Old Jammu & Kashmir Constitu tion Act of 1996 had been abolished in which the Maharaja had the power to dismiss the servants at pleasure but the people in this territory, who liberated themselves from the Maharaja's yoke, had all the powers which the Maharaja enjoyed and consequently the power to dismiss at pleasure by the Head of the Azad Jammu & Kashmir State had not been in any way taken away and that the public policy demanded that such a power should exist in the Head of the State, otherwise, the civil servants would become ungoverned monsters and that at any rate the power of removal at pleasure was necessary considering that the various cadres may have to be decreased which is still a real contingency, one way or the other in view of the unsettled and unrecognised territorial condition of the State, which really is still at war, there being only a cease‑fire agreement between the belligerents. He urged that the rule of removal at pleasure must of necessity be implied as a term of service of a civil servant of the Government. He next argued that section 30 of the Azad Jammu & Kashmir Government Service Regulation dealt with the various punishments, which could be awarded and alt that was laid down in the rule was that those punishments were to be awarded for good and sufficient reasons and that it could not be held to mean as thought by the learned Single Judge that the civil servants hold office not during the pleasure of the Head of the State but during good behaviour and if that were so. "The result would indeed be chaos because in that case the administration of rules which, in the case of some departments run into several volumes, will have to be undertaken by the Courts; each breach of the rule would be actionable, in any case, the subject‑matter of a writ; and the whole administration of services will in the end pass on to the Courts. Further, because rules are liable to change, each alteration in them will bring about a change in the conditions of service and every Government servant will thus be having a separate contract with Government the terms of which will have to be looked for in the rules which were in force at the time of his appointment". Noor‑ul‑Hassan v. Federation of Pakistan (P L D 1956 S C 331). He urged that section 30 mentioned above was an administra tive rule and could never be considered to be a part of the Government servants contract with the Government. As regards section 24 of the Public Servants Enquiry Act, referred to in the judgment of the learned Single Judge, as giving a "similar indication" as section 30 of the Kashmir Service Regulation. It was pointed out that a cursory look at section 24 would show that the section on the other hand gave the Government authority to suspend or remove any public servant without any enquiry under this Act. The words in section 24 are; "nothing in this Act shall be construed to affect the authority of the Government for suspending or removing any public servant for any cause without any enquiry under this Act." I think, the learned counsel is not far wrong in reading this section when be says that this provision gives the Government authority to remove or suspend a servant without an enquiry. The arguments are not without force and I am unable to agree with the learned Single Judge that there is enough material on the record to hold that Government employees in Azad Kashmir do not hold office at the pleasure of the Government and can only be suspended or removed or dismissed for good and sufficient reasons. I think, the rule has been too widely stated by the learned Single Judge and is capable of the interpretation that the Government servants here hold office not during pleasure but during good behaviour which can hardly be said to be a rule conducive to good public policy in view of the likely chaos being the result, in the administration. As pointed out by His Lordship, Muhammad Munir, (C. J.) In Noor‑ul‑Hassan's case at page 363.

11. The question now is what then is the rule regarding the terms of appointment of Government servants in Azad Kashmir. As stated above, there is no statutory rule obtain ing here in this respect except that in this connection in Schedule I, Rule 2 of the Rules of Business under the heading "Council", it is laid down "The Council shall exercise the following powers":‑ "(1) Sanction the appointment of all Gazetted Officers; (2) Decide cases involving posting, transfer and disciplinary action against Secretary to Government Heads of Departments, Deputy Commissioners, Superintendents of Police and other officers of Comparable rank . . ."

12. Obviously, no specific terms of appointment can be inferred from this rule. In the circumstances, it is the function of the Courts as it was the function of the Common Law Courts in England to ascertain the rule and enunciate it.

13. It is no wonder that such a rule like so many other necessary rules is not found in the Rules of Business which may be termed as the Constitutional Law of this State, because the same is in the course of evolution. Here, I may make a digression and refer to the brief history of Azad Kashmir and its Constitution as is admirably summarised by the learned Single Judge while discussing issues Nos. 3 (a) and 3 (b). It may with advantage be repeated here:‑ "The liberation movement of Jammu & Kashmir State was openly launched by the Muslim of the State at the close of October 1947. Before that, there were internal up‑heavals here and there in the State. At the close of October, 1947, when the State was attacked openly, some area was liberated and a Government headed by Sardar Muhammad Ibrahim Khan was formed. It functioned at the will of Sardar Muhammad Ibrahim Khan, the then President, who more or less followed the gules of Law already in existence in Dogra time with certain modifications suited to the changed circumstances. It was on the 28th December, 1950 for the first time, that a Constitution of Azad Kashmir State called the Rules of Business, were introduced. These were sanctioned by the Supreme Head. These Rules of Business are silent as to the fact as to who actually framed these Rules, passed them sod submitted them for approval of the Supreme Head, Col. Ali Ahmad Shah Sahib was the second President who succeeded Sardar Muhammad Ibrahim Khan. Col. Ali Ahmad Shah Sahib's Cabinet was succeeded by Mir Waiz Muhammad Yousaf Shah Sahib. He took oath of office on the 5th December 1951. With the coming in of Mir Waiz Muhammad Yousaf Shah Sahib, amendment m as affected in the Rules of Business by virtue of Council Order Nos. 33552, dated the 17th June 1952. This amendment was under the signatures of Mir Waiz Muhammad Yousaf Shah Sahib. According to the Rules of Business of 1950, the "Council" bad the power to legislate and the word "Council" was defined as the "President" and "other Ministers of the Azad Kashmir Government". Everybody knows, that Mir Waiz Muhammad Yousaf Shah Sahib bad no Ministers. He had Advisers called "Moawineen" who advised him on various matters of Government Administration. Amendment to the Rules of Business, under Council Order No. 335/52, dated the 17th June 1952, in no way affected the definition of the "Council" vide clause (4), sub‑clause (f) or its powers vide Schedule I, clause (2) which means that even in Mir Waiz Muhammad Yousaf Shah Shaib's time, the president alone did not constitute the Council. It is, therefore, a matter which deserves consideration, whether Mir Waiz Muhammad Yousaf Shah Sahib alone as "President" could legislate and amend the Rules of Business. Since, it is not necessary for me for the purpose of this case to give a finding on this point . . . . . . . . . ."

14. I will have to advert to this history later on, but here I may remark that the mind of Lawyers runs in the groove that there should have been a constitutional law in the circumstances of this state which may be given to them for interpretation and application. I am afraid, in actual practice the Constitution is a matter of fact. The de facto practice is prior to the Civil Law theory. "Until in practice the organised community we term a State exists", Civil Law cannot exist. Civil Law can and will, therefore, only take notice of its existence after it is established as a fact, and then will develop a theory to explain and express it. But no constitu tion can owe its de facto existence to Civil Law, and all constitutions must exist de facto before a civil law theory of them can be developed. 15. "This is illustrated by the origin of the American Con stitution and the English Constitution as established by the Revolution of 1688. Before the American colonies established their de facto independence, no judicial authority could, applying any known "civil law", have recognised it or the constitution based upon it, i.e., there could be no civil law recognition of it. Similarly, before the Revolution of 1688 no judicial authority could, applying any known civil law, have upheld the alterations produced by it. In both cases, once the fact was established, a civil law theory of the resulting position was easily elaborated by the Courts. "Here as elsewhere civil law theory may not be in complete harmony with the facts. De facto independence may, for instance, be secured by a succeeding part of a State long before it secures judicial recognition. In Great Britain in particular constitutional practice and civil law consti tutional theory are often greatly at variance. The de facto position of the Cabinet, and relation of the Commons to the rest of the Legislature has no direct recognition in civil law, i.e., in law enforced by the Courts". (Salmond on Juris prudence, at pages 185‑186):

16. Constitution, in the circumstances of the Azad Kashmir State, is more a matter of fact. Of course, now when the constitutional problems are being brought to the Courts, it is also becoming a matter of law also. The President in the case of the plaintiff‑respondent, as a matter of fact, exercised what he considered a constitutional power to remove him from service. It cannot be said that his action was contrary to the rule of the jus gentium on the point, namely, A that the Head of the State has power of termination of services of civil servants at pleasure. I think, the rule being based on sound public‑policy is rightly held to be a term of service and it must be held that the same rule obtains in Azad Kashmir, namely, that the Head of the State has power to dismiss or remove a public servant at will and pleasure and with the consequence that such a dismissal, removal will not be actionable; unless of course, there are rules in the nature of constitutional safeguards to restrict the powers of the Head of the State regarding the mode in which such a removal may be brought about or regarding the person who may order the removal. Breach of any of these safeguards, if any, would give a right of action to the aggrieved civil servant. This being then, the rule, it remains to be seen, whether the sub‑rule (ii) of rule 2 of Schedule I of the Rules of Business, set out above, is anything in the nature of a constitutional guarantee that the disciplinary actions against Head of the Departments will be taken only by the Council and by no one else. "Council" has been defined in clause (f) rule 3 of the Rules of Business to mean the "President" and "other Ministers" of the Azad Kashmir Government. The learned Counsel for the appellant urged that the Rules of Business were not the constitution of Azad Kashmir and were mere rules, the contravention of which was not action able as laid down in Noor‑ul‑Hassan's case and so many other cases and even if it be held that the Rules of Business were in the nature of constitutional rules, clause (ii) of rule (2) of Schedule I could not by any stretch of imagination be held to be a constitutional guarantee to the plaintiff‑respondent that he was liable to be removed from service by no one except the Council of Ministers. As regards the contention, that the Rules of Business are not in the nature of constitu tional law for this territory, I am afraid, a cursory glance at the rules would repel the argument of the learned Counsel, apart from the fact that a Full Bench of this Court in "Khan Bahadur v. State" has held that the Rules of Business are a "skeleton constitution." The first Rules of Business as promulgated by the Supreme Head of the Azad Kashmir movement are in the preamble stated to be applicable "to all phrases of governmental activity including the legislative, secretarial, executive, judicial, financial and pertaining to the recruitment of public services". It is stated in rule 5 that the Supreme Head shall nominate the President and other Members of the Council and in rule 9 the appointment of the Chief Justice and Judges of the High Court of Judicature shall vest in the Supreme Head and they shall hold office during his pleasure. In rule 11, it is provided that the Supreme Legislative powers shall vest in the Council and so on. These are such important, fundamental and far reaching activities that the rules regarding these must be classed as constitutional rules and I hold that the Rules of Business constitute the C skeleton constitution of the country.

17. Now, as to the second objection that clause (ii) of rule 2 of Schedule I of the Rules of Business is not a constitu tional guarantee to the plaintiff respondent regarding the authority for his removal, it is true that the language of the rule is not couched in the same or similar terms of guarantee as has been set out in, say section 240 of the Government of India Act, 1935 reproduced above. However, I think that a liberal construction ought to be placed op this rule and it can reasonably be said that at any rate one object of this rule is to give protection to the Head of the Department and the sole object of the rule is not to make provision for distribu tion of business among the President and the Council. In this view of the matter, the result is that admittedly that the order of discharge of the plaintiff‑respondent having been passed by the President alone prima facie a breach of a constitutional rule which may be construed as a guarantee B has not only been alleged but appears to have taken place and, therefore, I would hold that the plaintiff‑respondent is entitled to bring the present suit. Issue No. 5 was, therefore, correctly decided by the learned Single Judge. Issues Nos. 3, 3 (a) and 3 (b):

18. These issues may be taken up first as these were argued next. The finding of the learned Single Judge that in both the enquiries the charges dated the 29th February 1952, and 8th March 1951 were practically identical was not and indeed could not be challenged. Therefore, issue No. 3 (a) was correctly decided, so far as the factual position is concerned. Similarly, the findings of the learned Single Judge on issue No. 3 (b) whether the charges dated the 29th February 1952, proceeded on the same facts and allegations in respect of which an enquiry had already been held and the matter finally disposed of were not seriously challenged. However, their effect and legal implications were strenuously contested. Here, it will be helpful to advert to some of the documents. Exh. P. 1 is the report of an official of the Anti‑corruption Department to the effect that the plaintiff‑respondent had got a truck valued Rs. 10,350 transferred in the name of his minor son from one Muhammad Afzal Dean without paying its price and in return had shown favour to the said Mr. Dean by sanctioning a new Transport Company in his name with permission to run his buses from Jhelum to Kotli. This is dated the 1st February 1951. Exh. P. 2 is the order of the Council dated the 23rd February 1951 (issued on 9th March 1951) handing over the case for enquiry to the Ministers for Police and Transport for making necessary recommenda tions with regard to the following points:‑ (1) Whether upon the facts disclosed, any action was necessary against the Inspector‑General of Police? (2) If so, whether the case be taken to Court or a Departmental enquiry should be held? (3) Whether it was necessary to take explanation of the Inspector‑General of Police before coming to a decision on these points? Exh. P. 3 is the letter of the Development Minister dated the 18th March 1951 to the plaintiff‑respondent asking him to please send his reply regarding the four separate questions in relation to the transaction of sale of Mr. Dean's truck to the respondent's minor son. Question No. 5 asks the respondent to show cause why disciplinary action be not taken against him. This question is obviously beyond the term of reference to the Ministers, as set out in Exh. P.

2. Then there is a D. O. letter dated the 26th April 1952 by Khawaja, Ghulam Muhammad Revenue Minister to Khawaja Sanaullah, Police Minister (Marked Exh. P.4) in which it is stated that he has considered the case of the respondent carefully, being the report of the A. S. I. Anti-Corruption the questionnaire to and the explanation of the respondent and that he was satisfied that the transaction was genuine and for consideration and there was no question for the respondent having received illegal gratification though remarking:-"one thing to which I cannot reconcile myself am that is the buying of the truck from Mr. Muhammad Afzal Dean in the name of Shiekh Salim's son and attached the same with the same Company which subsequently was given route permit", and that further, he was of the opinion that it would be enough, if this unfortunate action of the respondent is recorded in his persona: file and the displeasure of the Government conveyed to him Exh P. 4/1 is a note of the Police Minister (without date) stating that he had read the note of Khawaja Ghulam Muhammad and discussed with him and agreed with his view. On this, the matter appears to have been placed before the Council and by their order dated the 25th November 1951 (Exh. P. 5), a warning was administered to the plaintiff respondent (and curiously to all other officers and competent authorities which is really g punishment) to be more careful in future. The last remark Exh. P. 5 is that the cases are closed with these orders and filed. It was urged on behalf of the appellant that this can hardly be held to be an enquiry under the Public .Servants Enquiry Act because no notice of the appointment of Commission was given to the accused as required by section 3, no prosecutor was nominated, no proper charges were framed Ps required under section 5 nor was a copy of list of documents and witnesses, as required under section 10, provided to the accused and so on. It was urged that it was as flimsy in enquiry as can be which was based only on the written complaint and the written defence of the accused on rather serious charges. It was pointed out that the terms of reference Exh. P. 2 did not empower the Ministers to suggest any punishment. Be that as it may, it was urged that the subsequent Government of Mir Waiz Muhammad Yousaf Shah being not satisfied with the enquiry and the consequent mild action taken by the Council upon it in terms of Exh. P. 5. theft was no bar to a proper enquiry under the Public Servants Enquiry Act being made by virtue of the sun moto authority of the Government under section 49 of the Kashmir Service Regulation to review its own or its predecessor's order and, therefore, on the 7th January 1952, the plaintiff‑respondent was rightly placed under suspension vide Exh. P.

6. The formal four charges were delivered to him (Exh. P. 7) and he was informed that he was to appear before Shiekh Abdul Majid (C. J.) who was appointed as the Commissioner to hold Abe enquiry. Exh. P. 8 is the appointment order of the Commissioner. Exh. P. 9 is the report of Shiekh Abdul Majid (C. J.) Commissioner who after recording 16 witnesses for the prosecution and six witnesses for the defence (it must have escaped the memory of the learned Single Judge, who tried this case, that he figured as D. W. 1 in this enquiry) found only charge No. 2 proved against the respondent and ended the report "it is now for the present Government to decide whether the action of the Government of Col. Ali Ahmad Shah was or was not proper". This report of the Commissioner appears to have been scrutinized by Col. Sher Ahmad Khan, President. Azad Kashmir Government, which report has been ordered to be placed on the file by the learned Single Judge, but bears no exhibit Col. Sher Ahmad Khan, the President, appears to have agreed with the finding of the Commissioner and consequently by order (copy Exh. P. 10) the President proceeded to discharge the plaintiff: respondent from service forthwith (2nd November. 1953). Then about 11th months later, the Council order dated the 20th October 1954, (copy Exh. P. 12) was served on the respondent to the effect that the Azad Jammu and Kashmir Government was pleased to confirm the order of the Hon'ble President (Minister‑in‑charge of Police) dated 2nd November 1953 in discharging him. From service in the interest of administration and that he will be entitled to proportionate pensionary relief, if any, provided under the rules.

19. On behalf of the plaintiff‑respondent, it was not denied that the Government had authority to review but it was urged that in fact there was no review of the Council Order Exh. P. 5 dated the 25th November 1951, as there was no formal setting aside of that order and that no notice was given to the respondent that the Government proposed to review its order and that the procedure for review as set out in order XLVII, Rule 1, Civil P. C. ought to have been adopted. I must say at once that it would have been much better if the procedure of order XLVII, Rule 1 Civil P. C. before review was resorted to but the same does not appear to be mandatory under section 49 of the Kashmir Service Regulation. Therefore, it may be regarded as no more than an irregularity. Though, it is nowhere asserted in writing but from conduct of the defendant‑appellant it is clear that the appellant was exercising the power of the review while suspending the respondent vide Exh. P. 6 and at the same time delivering to him substantially the same charges Exh. P. 7 about which he had been previously warned. The fact relied upon by the learned Single Judge in his judgment that the plea of the defendant‑appellant having acted under section 49 of Kashmir Service Regulation was never taken in the pleadings is hardly fatal in this case. Without having taken such a plea, I think, it may be shown that from its conduct the appellant purported to act in its revisional powers. When it is shown that the appellant had ample power to act in a legal manner, it will not be Presumed that it acted deliberately in an illegal manner. I think, this plea would have come out if the parties were examined before the issues. It would naturally have been asked why the defendant-appellant overrode the Council Order Exh. P. 5 and the answer would have been as it is now and was before the learned Single Judge that it was by virtue of section 49, Kashmir Service Regulation. It must, therefore, be held that the suspension order Exh. P. 6 and the charges Exh. P. 7 E were the result of a decision to review the Council Order Exh. P. 5 by the defendant‑appellant. This action cannot be explained on any other reasonable hypothesis. I would, therefore, hold that the defendant‑appellant acted in the exercise of its power of review after the case had been once finally disposed of by order Exh. P.

5. In this view of the matter, the contention that any general principle of res judicata applied to the case becomes unimportant. Section 49 F of the Kashmir Service Regulation does not give a restricted power of review and double jeopardy cannot be pleaded. No direct authority has been cited against this view. Rangachari's case (A I R 1937 P C 27), does not lay down as an absolute rule that a second enquiry cannot be held. In any case, the first enquiry by the Ministers appears to be an apology for an enquiry. Res judicata could be pleaded, if at all, if there had been a fair enquiry. In my view, section 11 of the Civil P. C. or section 403 of the Criminal P. C., are inapplicable to an G enquiry held under the Public Servants Enquiry Act nor are any general principles of res judicata of any avail to the plaintiff‑respondent. I think, to allow such a plea would be contrary to public policy. Nor can such a restriction be imported into the terms of section 49, Kashmir Service Regula tion. My answer, therefore, to issues Nos. 3 and 3 (b) is that the subsequent enquiry under the Public Servants 'Enquiry Act could validly be held against the plaintiff‑respondent and that the previous enquiry was not an enquiry under the'. Public Servants Enquiry Act and, further, not withstanding the case having been previously finally closed on the same facts, it could be reopened by the defendant‑appellant in exercise of its power of review. These issues are decided against the plaintiff‑respondent.

20. Issues Nos. 1 and 2.‑These are to the effect as to whether the order of suspension of the plaintiff‑respondent and the order for an enquiry against him by a Commissioner, under the Public Servants Enquiry Act were made by a competent authority. To discharge the onus of these issues, he relied on the Rules of Business of the year 1950, sub' clause (ii'), Rule 2 of Schedule I set out above to show that the competent authority to take disciplinary action against him was not the "President" but the "Council". However, rule 2 beings with the words. "The Council shall exercise the following power". It is nowhere stated that in the absence of the "Council", the Head of the State is precluded from exercise of the powers of disciplinary actions against the Head of a Department. Further, in the Rules of Business, it is nowhere stated that the "President" shall have a "Council of Ministers" as is the case for example under section 50 of the Government of India Act, 1935 which lays down "(1) there shall be a Council of Ministers to aid and advise the Governor in the exercise of his function . . . It follows, that it is optional for the "President" to have a "Council of Ministers" and not obligatory If, therefore, it can be shown that the President at the relevant time had all the powers, then his not appointing a Council of Ministers will not affect his powers simply because in Rule 2 Schedule 1, it is laid down that the Council shall exercise certain powers. From this it cannot be inferred that the President must have Council of Ministers. Therefore, the words "if any" will have to be read after the word "Council" in Rule 2 of Schedule 1, to represent the Constitutional position of the Council. While discussing issue No. 5 (para 16), I observed that constitution in the circumstances of the Azad Kashmir State is more a matter of fact. It appear that the relevant time the main concern of the constitutional law, namely the appointment of the Head of the State was entirely a matter of fact and J not a matter of law. To illustrate this, reference may be made to the history of Azad Kashmir and its constitution summarised in para. 12 above. After liberating by force, this territory, admittedly the old Dogra constitution was discarded. Sardar Muhammad Ibrahim Khan was the first President and his Government functioned according to his will. After a degree of organization was achieved for the first time on the 28th December 1950, the fragmentary constitution known as the Rules of Business were promulgated by the Supreme Head of the Azad Kashmir Movement in whom all the powers of Government appeared to reside. According to these Rules of Business, the Supreme Head had the power to nominate the President and the Council. Col. Ali Ahmad Shah was appointed President by the Supreme Head. After Col. Ali Ahmad Shah, Mir Waiz Muhammad Yousaf Shah appears to have assumed all the powers of the Government. It does not appear that he was appointed by the Supreme Head the source of the power according to the Rules of Business. On the other band, he by his own authority amended the Rules of Business (the amendment is before me) whereby he pro ceeded to eliminate the Supreme Head of the Azad Kashmir Movement from any participation in the conduct of the Government. In other word, he himself removed the Supreme Head and directed by an amendment that all reference to the term "Supreme Head" in the Rules of Business be omitted. Obviously, this is an instance of the exercise of unlimited powers by a de facto Head of the State. It is true that by a "stroke of pen" as remarked by the learned Single Judge, he could amend Rule 2 of Schedule I by Sub stituting .the word "President" in place of the word "Council". It is not for this Court to surmise why it was not (?) done but the fact remains that President Mir Waiz Muhammad Yousaf Shah exercised all the powers. If he could remove the Supreme Head, who according to law was the one to moninate the president, a fortiori, he could validly pass an order of suspension or of an enquiry under the Public Servants Enquiry Act being held against a Head of the Department, like the plaintiff‑respondent. The existence of sub‑rule 2, Rule 2 of Schedule I of the relevant Rules of Business does not appear to derogate from his powers. This rule would have come into operation only if he had appointed a Council which was an optional matter for him. Seeing the matter in this light, I would hold that the order of suspension passed and the order of enquiry under the Public Servants Enquiry Act passed by the President in those circumstances was valid, having been passed by a competent authority. I decide issues Nos. 1 and 2 against the plaintiff‑respondent.

21. Issue No. 4.‑--This issue is, whether the order dated the 2nd November 1953, which was ratified subsequently by the Council on the 30th October 1954, was mala fide, oppressive, wanton, inoperative, ultra vires, opposed to natural justice and illegal against the plaintiff. The learned Single Judge's finding on this issue is since he has held the order of suspension of the plaintiff as illegal and the order of the enquiry against him as illegal "therefore, the order of discharge passed on the report of the second enquiry which was subsequently ratified by Council order No. 353/54 dated the 20th October 1.954, could not have arty legal force, unless the same too were regularised by the Government". The finding appears to be that if the Council had regularised the order of suspension and the order of an enquiry, then the order of discharge would have been valid. I have held that the orders of suspension and enquiry were validly passed, so this issue will appear to automatically decide itself against the plaintiff‑respondent. However, the learned counsel for the plaintiff‑respondent ably advanced the argument that at the time the order of discharge was passed by the President, a Council of Ministers existed. This was not denied on behalf of the defendant -appellant. It was pointed out that in the relevant Rules of Business the same provision under Rule 2 of Schedule I existed that it was in the power of the Council to take dis ciplinary action. It was pointed out that clearly the President alone whose position in the circumstances was that of the Police Minister could not order the discharge by himself and that confirmation of the President's order of discharge by the Council amounted to nothing, being bereft of the basis, and that in any case the confirmation by the Council appears to be a Mechanical process and hence ineffective. In support of his contention, the learned counsel cited Azamuddin v. The Federation of Pakistan (P L D 1955 Sind 357). In that case, while interpreting the provisions of section 240 (2) and (3) of the Government of India Act, 1935 Mr. Justice Lari held that the section required that the competent authority should apply his mind to reach a conclusion and not a subordinate authority, and that confirmation by way of routine by the competent authority was nothing less than a fraud on the provisions of section 240 sub‑clause 2. here can be no quarrel with the proposition laid down in this authority but unfortunately for the plaintiff‑respondent no provision similar to section 240 of the Government of India Act; 1935 exists in the constitution in this country: This Court is dealing with the claim of and equitable relief. It has in the absence of statutory rules to interpret the relevant transactions in accordance with justice, equity and good conscience. It cannot import technical rules of construction of statutes where no statutes exist. This ruling, therefore, is inapplicable Both the order of discharge by the President and its confirmation by the Council must be read together in order to infer the intention of the Government which plainly is that the Council has discharged the plaintiff‑respondent. As to the argument that it did not appear that the Council applied its mind to the decision of discharge from service arrived at by the President, I am afraid, I am unable to agree. The order of confirmation by Council appears to be more comprehensive order than the order of discharge by the President which would appear to' indicate that the Council applied its mind to the award of the punishment to the plaintiff‑respondent. Otherwise, the Council would not have held him entitled so as to soften the pensionary relief, is admissible, which does not find expression in the President's order of discharge. It must, therefore, be held that the plaintiff‑respondent was validly discharged from service and hold accordingly.

22. In view of my finding on issues Nos. 1, 2, 3 3 (b) and 4 against the plaintiff respondent, I would accept this appeal, set aside the declaratory decree dated the 6th February 1957, passed in his favour and dismiss his suit. However, in view of the unascertained constitutional rules relevant on the subject, I would leave the parties to bear their own costs throughout. NIAZ AHMAD, J.‑--I agree. A. H. Appeal accepted.