P L D 1967 Lahore 1093 (PLP)

INAMULLAH KHAN, C. J.‑This is a petition under Article 98 of the Constitution. The facts giving rise to the present petition are these. The petitioner was appointed as an Assistant Sub‑Inspector of Police on three years' probation on 1‑3‑1962, by the D. I. G., Multan Range. He was charge‑sheeted in February 1965, by the Superintendent of Police, Muzaffargarh. The S. P., after perusing the explanation of the petitioner and holding a departmental inquiry, gave him a show‑cause notice on 26‑2‑65, as to why his services should not be terminated. The petitioner submitted his reply to the show‑cause notice. The S. P. was not satisfied with the reply and removed the petitioner from service on 27‑2‑1965. The petitioner filed an appeal to the D. I. G. which was dismissed on 13‑7‑

65. Thereafter he made a representation to the Inspector‑General of Police which also met the same fate on 11‑8‑

65. The present petition was filed on 4‑11‑

65. It was admitted by a Division Bench of this Court on 2‑2‑

66. The admitting note reads as under:‑ "The learned counsel contends that the S. P. did not have the authority either by himself or as the delegate to terminate the petitioner's services. He refers to Muhammad Afzal Khan v. Superintendent of Police, District Montgomery P L D 1961 Lab. 808, in support of the contention. The petition is admitted to a full hearing. Notice to the respondents."

2. Mr. G. M. Mirza, the learned Advocate for the peti tioner, has raised two points before us, namely, (1) that the petitioner could not be removed by an officer subordinate to the appointing authority, and (2) that the petitioner was not given a reasonable opportunity to meet the show‑cause notice for terminating his services. We propose to dispose of these points separately.

3. The admitted position is that the services of the petitioner were terminated by the Superintendent of Police, Muzaffargarh. The question for decision is as to whether the appointing autho rity was the S. P. Muzaffargarh or the D. I. G. of the Range. In rule 12.1 of the Punjab Police Rules, 1934, Vol. 11, 1957 Edition, hereinafter to be referred to as the Police Rules, the Provincial Government have, under section 241 of the Government of India Act, 1935, delegated its authority to appoint Sergeants, Sub. Inspectors and Assistant Sub‑Inspectors to Superintendents of Police and Assistant Superintendent,. Government Railway Police. The appointing authority of the petitioner, therefore, was the Superintendent of Police.

4. The next question is as to what is the effect of the letter of February 1962, by the D. I. G., Multan Range to all Superintendents of Police in the Multan Range (Annexure A to the petition) whereby the petitioner was approved for appointment as A. S. I. by the D. I. G. of Police, Multan Range. A perusal of the letter, by which the D.

1. G. approved the appointment of the petitioner as A. S. I., would disclose that the D. I. G. did not technically appoint him but he only approved his appointment to be notified by the S. P. The opening sentence of the letter reads as under:‑ "The following four candidates have been approved for appointment as Assistant Sub‑Inspectors of Police on three years' probation G Rs. 80.00 p.m." The concluding paragraph of this letter reads as under:‑ "Their nominal rolls are enclosed. Intimation regarding their fitness may be sent immediately for allotment of range numbers to them after which Gazette Notification regarding their appointment will be issued by you." In this connection reference may be made to S. Qamar All Shah v. The State (P L D 1965 S C 50). In that case, Qamar Ali Shah was convicted under section 161, P. P. C. The question arose as to whether the sanction by the Superintendent of Police for his prosecution was valid in view of the fact that he was appointed as Offg. A. S. I. by order of the D.

1. G. Their Lordships of the Supreme Court observed that the power of appointment was in the S. P. alone though he (the petitioner in the case) was approved as Offg. A. S. I. by the D. I. G. of Police. The relevant obser vation of their Lordships runs as under:‑ "The D. I. G.'s `order' appears to have employed some loose language in declaring that the officers named therein were promoted to officiate as S.Is. and A.S.Is. The correct position was that they were being recommended for appointment to the various S. Ps. who alone were competent to issue the necessary notifications in the police Gazette. The order of the D. I. G. was never published in the Police Gazette whereas all promo tions concerning upper subordinates are required to be publi shed therein by virtue of sub‑rule (3) of rule 13.4." In the instant case also, as we have already referred to rule 12.1 of the Police rules, under which the appointing authority is the Superintendent of Police. The D. I. G. by his letter only approved the appointment to be notified by the Superintendent of Police. In this connection, the learned Advocate for the petitioner, in support of his contention that the petitioner was appointed by the D. I. G., relied on Muhammad Afzal Khan v. S. P., District Montgomery (P L D 1961 Lah, 808). Their Lordships of the Supreme Court considered this case in S. Qamur Ali Shah v. The State, already cited above, and observed as under:‑ . "If, however, the ruling was intended to lay down that in circumstances similar to those prevailing under the relevant rules, in this case, the prior approval of a candidate for promo tion by the higher officer, entailed the consequence that the higher officer also became part of the appointing authority, then we must respectfully dissent from that view." In other words, what we understand from the observations of their Lordships of the Supreme Court is that the mere fact that the D. I. G. approved the appointment of the petitioner as A. S. I., the D. I. G. did not become an appointing authority within the meaning of rule 12.1 of the Police Rules. We would hold, therefore, that the appointing authority in the present case is the Superintendent of Police and n of the D. I. G.

5. The second contention of the learned Advocate was that the petitioner was removed from service on the ground of misconduct and, therefore, his removal from service did not amount to discharge from service. The submission is that removal, which is based on a finding of misconduct, carries with it a stigma and is different in its effect, from a simple order of termination of services. The consequence of such a finding, it is submitted, is that it amounts to dismissal from service. The petitioner, therefore, it is contended, is entitled to an inquiry into the allegations of misconduct made against him. In this connection reliance was placed on Capt. Muhammad Azhar v. Commissioner of Karachi (P L D 1966 S C 253).

6. In order to appreciate the contention of the learned Advocate for the petitioner, it would be useful to reproduce the observations of their Lordships of the Supreme Court in the above case. The relevant portion runs as under:‑ "It is clear that the Commissioner had come to a finding that the appellant was guilty of misconduct and had on that ground passed an order of removal under sub‑rule (4) of rule 4 of Government Servants (Efficiency and Discipline) Rules. The mere fact that he added at the end of his order a reference to clause 1 of the appointment letter of the appellant cannot convert an order passed in the exercise of disciplinary autho rity into an order of discharge on 15 days' notice. Removal which is based on a finding of misconduct carried with it a stigma and is quite different in its effects from a simple order of termination of service. If charges are framed, an inquiry is conducted, findings are recorded, and an order of removal passed, an illegality committed in such disciplinary proceedings cannot be cured by a mention of the terms of employment of the civil servant covcerned. The order of removal has to stand on its legs." In order to apply the above observations, two things must be established, namely, (1) that there should have been an order under sub‑rule (4) of rule 4 of the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, hereinafter to be referred to as the Rules; and (2) that there should be a finding of misconduct. The impugned order of removal of the petitioner reads as under:‑ "A. S. I. Abdul Rashid Abbasi No. 178/M of this District, who was enlisted as such on three years' probation with effect from 1‑3‑1962, is discharged. from the service with effect from 27‑2‑1965, because he is not likely to become a good police officer. There were complaints of corruption and. misconduct against the A. S. I" It would appear from the above that the services of the petitioner were not dispensed with under the Rules. It further appears that there is no finding of misconduct. All that is mentioned C in the above order' is that there were complaints of corruption and misconduct against the petitioner. There is no finding that these allegations were correct. It is only a ground for discharge of the petitioner. In this connection reference may be made to Abdul Karim v. The West Pakistan Province (P L D 1956 S C 298). In that case a temporary employee of the P. W. D., whose services could be terminated on one month's notice, was served with a list of charges of misconduct and as asked to show cause why he should not be dismissed. He answered the charges and no action was taken on the basis of that inquiry. He was, however, then served with a notice terminating his services on the expiry of one month after notice. 1t was held that the termina tion was not necessarily mala fide inasmuch as it is open to the dismissing authority not to have recourse to the power of dismissal which is a drastic step and which affects subsequent employment of the public servant but to terminate service on one month's notice is accordance with the condition of his employment. We are of the view that the petitioner being on probation for three years, his services could be terminated by the appointing authority if he was found to be unfit for police service. There has to be some ground or other for discharge. If the authority concerned acted on the complaints of corruption and misconduct against the petitioner in discharging him. It cannot be said to have acted against the term of his employment. The mere disclosure of the ground for discharge would not amount to a finding as to the truth of the ground.

7. Lastly, it was urged that sufficient opportunity was not given to the petitioner to meet the show‑cause notice against his discharge from service. It is submitted that he was given only 24 hours. There is not much force in this submission. In the first place, the petitioner was asked to send his reply to the show- cause notice by 28‑2‑

65. He, however, submitted the reply a day earlier. It cannot, therefore, be said that reasonable opportunity was not given to the petitioner. The very fact that the petitioner submitted his reply on 27‑2‑65, would show that the time given to him was sufficient. In the second place, this is a case of mere discharge from service under the term of his employment. It was not necessary to give more time than was given to the petitioner.

8. For the reasons given above, we would dismiss the petition but would make no order as to costs. A. H. Petition dismissed.