P L D 1955 Sind 250 (PLP)

MUNSHI, J.--‑This is a suit filed under section 42 of the Specific Relief Act read with section 240 (3) of the Govern?ment of India Act, 1935, for a declaration that plaintiffs removal from service is void and inoperative and that he continues to be in service as a Police Constable. The facts giving rise to this suit, as alleged by the plaintiff, briefly stated are as under:-- The plaintiff who is a refugee from U. P. was taken up as an unarmed police constable in the month of November 1947. On 29th November 1950, he was charge sheeted by the Superintendent of Police, Crime Branch, as under :‑‑ "(1) You failed to assist Capt. S. M. Ahmad of R.P.A.S.C. when the latter asked for help in connection with an accident which took place on 25th October 1950, between his car and a rickshaw. (2) You mis‑behaved with the Capt. in that you refused to accompany him or guide him the way to the P. S. or even take down the No. or name of the rickshawala in spite of the fact that the Capt. proved his rank by show?ing his identity card. (3) Later on you made false allegations against the Capt. that he assaulted you in the presence of public." These charges were enquired into by the Police Inspector, Baghdadi Section, who came to the conclusion that only charge No. 2 was proved, and in his report he recommended the imposition of the penalty of severe reprimand with a warning of removal from service if the default was reported. The Superintendent however not agreeing with the finding and recommendations of the enquiry officer, held the plaintiff guilty of all the charges and by his order dated the 13th March 1951, he dismissed him from service with effect from the date of the order. Against this order the plaintiff went in appeal before the Senior Superintendent of Police but the latter rejected the same. He then filed a revision application before the Administrator and Ex‑Officio Inspector‑General of Police, who gave no reply. Then he filed the present suit against the Federation of Pakistan after serving them with notice under section 80 of the C. P. C., to which notice no reply was given. The grounds on which the plaintiff has based his suit are mainly these :‑

1. That the main witnesses in the case viz., Captain S. H. Ahmed and Mr. Ali Inam, on? whose written statement the entire charge is based have not been examined by, the Enquiry Officer and hence the plaintiff was denied the right of cross?examining them and that this amounted to violation of the tion provisions of Rule 1284 of the Bombay District Police Manual Stan and of Rule 55 of the Civil Service (Classification, Control and Appeals) Rules.

2. That the Superintendent, Crime Branch, who had not seen the witnesses and marked their demeanour did not act properly, when he held him guilty of the two charges of which he was not found guilty by the Enquiry Officer.

3. That in punishing the plaintiff the Superintendent has taken into consideration the confidential record of the plaintiff which did not form part of the charge and to explain which he was given no opportunity.

4. That at the conclusion of the enquiry and before passing the order of dismissal the plaintiff was not served with a notice informing him that the charges against him had been proved, and that it had been provisionally determined to take the action of dismissal from service in respect of him.

5. That he was not given reasonable opportunity to show cause against the punishment proposed to be imposed upon him. Against this plaint, a written statement was filed denying the allegations of any irregularity and it was further contended that even if there was any irregularity 'committed, it gave no cause of action to the plaintiff. It was asserted that the order of dismissal is valid and binding and that the suits should be dismissed with costs. On the above pleadings the following 9 issues were at first settled :‑ (1) Whether the plaintiff is a displaced policeman from the United Provinces of Agra and Oudh? (2) Whether the plaintiff did on 5th June 1951 submit a revision petition to the Administrator and Ex‑Officio Inspector‑General of Police, Karachi, and did he receive no reply thereto ? (3) Whether the departmental inquiry was vitiated by any gross irregularities as alleged in the plaint ? (4) Whether the Court has‑%jurisdiction to go into the question whether there were any such irregularities ? (5) Whether the irregularities, if any, gives any cause of action to the plaintiff ? (6) Whether the order of dismissal of the plaintiff is not valid and binding ? (7) Whether the notice under section 80 C. P. C is bad ? If so, what is the effect ? (8) Whether plaintiff has any cause of action against defendants ? (9) To what relief, if any, is the plaintiff entitled ?" By consent issues Nos. 1, 2, 5 and 8 were subsequently dropped and a fresh issue viz., 6‑A framed. It is this :‑ "Were the provisions of section 240 (3) of the Govern?ment of India Act 1935 read with sub‑rule. (12) of Rule 1284 of the Bombay District Police Manual as amended by the correction Item No. 272, G. R. P. and M. Dept. No. 741‑H/41 contravened in dismissing the plaintiff ? If so, what is the effect ?" My finding on the issues are as under :‑ Issue No. I‑Dropped. Issue No. 2‑Dropped. Issue No. 3‑Yes. Issue No. 4‑Not pressed. Issue No. 5‑Dropped. Issue No. 6‑Yes. Issue No. 6‑A‑Yes. Issue No. 7‑No. Issue No. 8‑Dropped. Issue No. 9‑As under. In support of his plaint the plaintiff has gone into the witness‑box. He has repeated the allegations mentioned in his plaint and in the notice under section 80 C. P. C. He has asserted that he was not given opportunity of cross?examining the witnesses on whose complaint he has been punished. He has also asserted that he was not supplied with a copy of the report of the enquiry officer before his dismissal from service. He has further asserted that 'before his dismissal he was not given any notice intimating that it had been provisionally determined to impose the penalty of dismissal upon him nor was he given an opportunity to show cause against the punishment proposed to be imposed upon him. In cross‑examination the attention of the plaintiff was drawn to a document Exh. 11 and he has stated that it bears his signature. This document is headed 'Final statement of Mr. Khadim Hussain'. It contains questions put to the plaintiff by the S. P. Crimes, and the answers given by him. The plaintiff has stated that question No. 5 mentioned in Exh. 11 was not put to him and that it is not correct to say that he was asked to show cause against his dismissal. No witness has been examined on behalf of the defendant. The main issues in this case are issues Nos. 3, 6 and 6‑A. The rest of the issues in fact were given up by the parties. As issues Nos. 3 and 6‑A are closely connected, I propose to deal with them together. Issues Nos. 3 and 6‑A.‑(3) Whether the departmental enquiry was vitiated by any gross irregularities as alleged in the plaint, and (6‑A) were the provisions of section 240 (3) of the Government of India Act 1935 read with sub‑rule (12) of Rule 1284 of the Bombay District Police Manual as amended by the correction item No 272, G. R. P. & M. Dept. No. 741‑H/41, contravened in dismissing the plaintiff ? If so, what is the effect ? The main irregularities alleged to have been committed in the enquiry are enumerated above, but the only ones which according to me can give cause of action are Nos. 4 and

5. The other irregularities even if proved will not give cause of action as they are not committed in contravention of any statute. They are in respect of the Rule 55 of the Civil Services (Classification, Control and Appeals) Rules and Rule 1284 of the Bombay District Police Manual and contra?vention of these Rules can give no cause of action. This was conceded by the learned counsel for the plaintiff. I therefore do not propose to go into them. Irregularity No. 4 is that before passing the order of dismissal the plaintiff was not served with notice informing him that the charge against him had been proved and that it had been provisionally determined to impose the penalty of dismissal on him. Irregularity No. 5 is that the plaintiff was not given any opportunity to show cause against the punish?ment proposed to be imposed upon him. The plaintiff, besides stating in the notice under section 80 and in the plaint, that the above irregularities were committed, has also deposed in Court that no copy of the report of the enquiry officer was supplied to him before his dismissal nor was he served with any notice that it had been provisionally deter?mined to impose the penalty of dismissal upon him. He has also stated that he was not given any opportunity to show cause against the penalty proposed. No witness has been examined on behalf of the defendant to refute the allegations of the plaintiff. No document is produced in Court to show that the plaintiff was in fact supplied with a copy of the report of the enquiry officer or that he was informed of the proposed punishment nor is there any document to show that he was given opportunity to show cause against the proposed punishment. It was argued by the learned counsel for the plaintiff that it was not difficult for the defendant to disprove these allegations as they had all the relevant documents in their possession. In fact the learned counsel drew the attention of the Court to the presence of one of the officers of the police department in Court who was giving instructions to the learned counsel for defendant on referring to the files lying in front of him. The learned counsel for the defendant merely relies upon the document Exh. 11 in support of his contentions that the plaintiff was informed of the result of the enquiry and of the punishment proposed to be imposed and that he was given opportunity to show cause against the said punishment. This document as stated above is headed 'Final statement of U. P. C. 1014 Khadim Hussain of Central Section. The body of the document merely contains questions and answers put to and given by the plaintiff. The perusal of the questions and answers would on the contrary indicate that they were put and given at a time when the enquiry had not yet concluded for instance the question 'Have you been given opportunity to cross‑examine' and the answer I do not want to cross?examine', and the question 'do you plead guilty' clearly indicate that up to the time they were put and given, no decision as to the guilt or otherwise of the plaintiff had been taken. There was otherwise no point in asking the plaintiff whether he was pleading guilty. If the decision as to his guilt had already been arrived at and the advanced stage of informing him of the punishment proposed and of giving him opportunity to show cause against it had been reached. This document Exh. 11 is obviously in continuation of the enquiry and not after the enquiry was completed. The learned counsel for the defendant replies on question No. 5 viz., 'Please show cause why you (?) dismissed from service' and from this he argues that it is suffcient compliance with the provisions of section 240 (3) of the Government of India Act, 1935. On the other hand it was contended on behalf of the plaintiff and according to me, rightly that putting of this one question to the plaintiff in that fashion and at that stage is anything but compliance with the provisions of subsection 3 of section

240. The subsection reads as under :‑ "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." Thus the subsection clearly lays down that before the punish?ment of dismissal is imposed, the civil servant concerned must be given reasonable opportunity of showing cause against it. And the words 'reasonable opportunity' imply that the civil servant, before he is called upon to show cause should be informed of what the enquiry officer has said about him and what conclusions the punishing authority has arrived at. The above enactment does not contemplate mere oral enquiry from the civil servant on this point nor does it contemplate that this has to be done in a summary way as has been done in this case. The section does not say that the Civil Servant is merely to be called at one stage of the enquiry and asked as to what he has to say against the proposed punish?ment. In order to give effect to the provisions of section 240 (3) of the Act it was therefore incumbent on the punishing authority to supply the plaintiff with a copy of the report of the enquiry officer, to inform him of the decision taken on the allegations, and of the punishment proposed to be imposed and thereafter he was to be given opportunity to prepare his case and make a representation, if any, against the punishment proposed. The evidence on record does not show that this has been done. The plaintiff who is merely a Police Constable was hardly expected to make a considered reply within the few minutes that he was before the Superintendent and without knowing what the enquiry officer had stated in his report. In this particular case it was more necessary for the punishing authority to supply him with a copy of the report and give him time enough to study the same before showing cause against the proposed punishment, as the punishing authority n has not agreed with the enquiry officer as to his findings and the punishment proposed by him. I also find from the order of the punishing authority Exh. 7 that while imposing punishment he has taken into consideration the confidential record of the plaintiff. This is what he says in the last paragraph of his order:‑ "The defaulter has very poor sheet and has had 5 punish?ments to his dis‑credit since his enlistment on 1st November 1947. One of the punishments recorded on 1st May 1948,‑is worth mentioning. He was detacted making an unauthorised correction in his medical certificate by changing the date, he is therefore a bad type altogether and a person not fit to remain in Government service. He is therefore dismissed from service with effect from 13th March 1951." It is amazing that this bad record of the plaintiff which according to me was the principal factor to weigh with the Superintendent in imposing the maximum punishment on the plaintiff, finds no place in the charge sheet, nor does it appear anywhere in Exh. 11 the main plank of the defendant's case. In fact there is nothing on record to show that the plaintiff was at any time told that while imposing punishment his confidential record would be taken into consideration. This amounts to condemning the plaintiff without having heard him and it is to guard against such departure from the principles of natural justice that section. 240 (3) of the Act was enacted. The learned counsel for the defendant conceded that the whole case depends upon the answer to the question, have the provisions of section 240 (3) of the Government of India Act been complied with". He stated that if the answer is in the negative, the suit will have to be decreed. He also agreed that the section contemplates that the opportunity should be reasonable. But he contended that in this case reasonable opportunity was in fact given. According to him the report of the enquiry was supplied to him and he says this is clear from the fact that the plaintiff has produced the same in Court. The learned counsel forgets that this report was filed with the plaint which was done long after the punishment order was passed. The plaintiff states that he obtained the copy after the order of dismissal was passed and he did so for the purpose of this suit. No attempt has been made to refute this statement although as said above one officer of the police department was present with files. In the alternative it was argued that the plaintiff himself should have asked for the copy when questioned by the S. P. and this according to the learned counsel amounts to waiver on his part. The record however does not show whether the plaintiff asked for the copy or not but the fact remains that he was not supplied with one and that he had no copy of the record with him when he was put questions by the S. P. How could in that case the plaintiff be expected to make a considered reply to the question put. Thus, even if putting the question amounted to giving opportunity to the plaintiff, it by no means can be considered a reasonable opportunity. The learned counsel then argued though faintly that the punishmeut proposed to be imposed was mentioned in the charge‑sheet itself and this according to him was sufficient compliance with the provisions of section 240 (3) of the Act. The learned counsel knows well that the punishment mentioned in the charge‑sheet was‑ merely hypothetical. Itsl mention in the charge does not at all absolve the punishing officer of his duty to comply with the mandatory provisions of section 240 (3) of the Act. The wording of the section makes it quite plain that the opportunity is to be given after the enquiry is completed and after the punishing officer has made up his mind to impose a particular kind of punishment. It is only then that the civil servant is asked to show cause against the punishment which the punishing authority proposes to impose. This question came up before the Federal Court of India in the year 1945 in the case of Secretary of State for India v. I. M. Lal and it was decided that the opportunity to show cause is to be given to the officer concerned after he is found guilty and before the punishment is imposed. The case is reported in I L R 1945 F C

101. This decision was upheld by their Lordships of the Privy Council in their judgment reported in A I R 1948 P C

121. In this judgment it is also made clear that the opportunity to be effective must be adequate. In this case, I find no opportunity much less reasonable was afforded to the plaintiff to show cause against the action proposed. I therefore hold that the enquiry was vitiated by gross irregularities and that the Superintendent has acted in contra?vention of the mandatory provisions of section 240 (3) of the Government of India Act, 1935. The effect is that the order is neither valid nor binding and the removal of the plaintiff from service is void and inoperative. He therefore continues to .be in service as a Police Constable. Issue No. 4.‑‑Whether the Court has jurisdiction to go into the question whether there were any such irregularities. This question was dropped. Issue No. 5.‑This issue was dropped. Isssue No. 6.‑It follows from my finding on issue Nos. 3 and 6‑A that the order of dismissal is neither valid nor binding. Issue No. 7.‑This issue was dropped. Issue No. 8.‑This issue was dropped. Issue No. 9.‑In the result the suit stands decreed with costs. A. H.??????????????????????????????????????????????????????????????????????????????????????????????????????????????? Suit decreed.