P L D 1963 (W (PLP)

S. A. MAHMOOD, J.‑‑Muhammad Abdullah Shah petitioner was an Assistant Sub‑Inspector of Police posted at Khanpur in July 1959. One Ghulam Sarwar, who lodged first information report No. 141 at Khanpur Police Station, made a complaint to the Superintendent of Police, Rahimyar Khan, that A. S. I. Muhammad Abdullah Shah had extorted a sum of Rs. 220 as illegal gratification from him. The Deputy Superintendent of Police under the orders of the Superintendent of Police, held a preliminary enquiry. It was also enquired into by Sh. Muhammad Abdullah, Inspector of the Anti‑Corruption Department. The Deputy Superintendent of Police made a report in favour of the Assistant Sub‑Inspector, but on the recommendations of the Head of the Anti‑Corruption Department, the Superintendent of Police, Rahimyarkhan, ordered a regular enquiry to be held against the petitioner on the charge of receiving Rs. 220 as illegal gratification from Ghulam Sarwar. The enquiry was ordered on the 5th of May 1960. The Superintendent of Police deputed the Prosecuting Inspector to hold the enquiry, which was held in accordance with the Bahawalpur Police Rules. On the completion of the enquiry, the Prosecuting Inspector submitted a report in which he found the charge of misconduct proved against the Assistant Sub‑Inspector. The findings of the Enquiry Officer were forwarded by the Superintendent of Police to the Deputy Inspector‑General of Police, who is the appointing authority. He issued a show‑cause notice to the Assistant Sub‑Inspector of Police, who replied to the show‑cause notice. The Deputy Inspector‑General of Police ordered the dismissal of Muhammad Abdullah Shah petitioner by his order dated the 25th of January 1962. The petitioner filed an appeal against the order of his dismissal, which was dismissed by the Additional Inspector General of Police, West Pakistan, by his order dated the 3rd May 1962. Hence this writ petition by Muhammad Abdullah Shah, Assistant Sub‑Inspector. 2. The ground on which the order of his dismissal is challenged as illegal by the petitioner is that the Superintendent of Police did not call him and give him an opportunity of making a further oral statement in his defence and thereby contravened rule 6.20 (ix) of the Bahawalpur Police Rules which provides as follows:‑ "No order of dismissal shall be passed in a case which has been conducted by an officer junior in rank to the Superin tendent until the accused officer has been produced before the Superintendent and has been given an opportunity of making a further oral statement in his defence." 3. The West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, were enforced on the 27th of July, 1960. These rules were framed in exercise of the powers conferred by clause (3) of Article 6 of the Laws (Continuance in Force) Order, 1958. These rules apply to all Government servants under the rule making authority of the Governor of West Pakistan, except members of such services and holders of such posts as may be specified by Government by notification in the official Gazette. These rules do not, however, apply to the present case because rule 16 (1) of these rules, provides that notwithstanding the supersession of the rules and instructions specified in sub‑rule (1) (hereinafter referred to in this sub‑rule as the said rules and instructions), any departmental enquiry or proceedings pending immediately before the coming into force of these rules, shall be completed and orders passed thereon as if the said rules and instructions had not been superseded. As the enquiry in this case was ordered on the 5th of May 1960, and was pending, when the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, came into force, the enquiry was and had to be conducted under the Bahawalpur Police Rules. These rules were framed in exercise of the powers conferred by sections 7 and 12 of the Police Act and came into force in the former State of Bahawalpur from the 1st April 1947, and continued in force under section 10 of the Establishment of West Pakistan Act 1955 after integration up to 26th July 1960 It is not, therefore, in dispute in this case that the enquiry was, correctly held under the Bahawalpur Police Rules. 4. The learned counsel for the petitioner contends that as in dismissing the petitioner, rule 6.20 (ix) was contravened the order of dismissal is illegal and inoperative. The petitioner prays in this writ petition under Article 2 (4) of the Laws (Continuance in Force) Order 1958, instituted on the 7th of June 1962, that the order dated the 25th of January 1962, dismissing the petitioner, and the order dated the 3rd of May 1962, dismissing his appeal be set aside by the issue of a writ of certiorari, and a writ of mandamus be issued directing the respondents to re‑instate the petitioner in service to the post, which he held prior to the passing of the impugned order. 5. It is not in dispute in this case that the petitioner was not produced before the Superintendent of Police and was not given an opportunity of making a further oral statement in his defence. This is the requirement of sub‑rule (ix) of rule 6.20. The learned counsel for the respondents contends that as a show -cause notice was issued to the petitioner by the Deputy Inspector General of Police, the non‑observance of the sub‑rule is at most an irregularity, and does not affect the legality of the order of dismissal. It is urged that as the statutory requirement of a show‑cause notice has been observed, it was not necessary for the Superintendent of Police, who was not the punishing authority, to call the petitioner and afford him an opportunity of making a further oral statement in his defence. It is pointed out that this sub‑rule was a copy of the Punjab Police Rules, which were suitably amended to bring them in conformity with the require ments of the Constitution and a show‑cause notice was brought in, and now that a show‑cause notice has been introduced and was given, the sub‑rule is a surplusage and need not have been observed. It is further argued that mere breach of a rule does not entitle the petitioner to the grant of a relief, for Courts are not competent to grant relief in such cases, and reliance is placed on R. Venkata Rao v. Secretary of State (AIR 1937 P. C 31). 6. If the sub‑rule was no longer necessary or of no use, it should have been repealed or deleted, but this was not done. The sub‑rule remained in force even though the interim Constitu tion of Bahawalpur was introduced in 1951 and its Article 66 afforded a protection to the State Servants similar to the pro tection existing in favour of public servants under section 240 of the Government of India Act 1935. Section 10 of the Establishment of West Pakistan Act continued the existing laws prevailing in the State and by its section 8 (3) persons holding civil posts in the State were granted the terms and conditions admissible to them. Article 6 (1) of the Laws (Continuance in Force) Order, 1958, guaranted to the Public Servants the same terms and conditions of service as they enjoyed already. 7. The question which falls for determination is whether the contravention of the sub‑rule affects the legality of the order of dismissal or not. It is so worded that it directs that no order of dismissal shall be passed in a case, which has been conducted by an officer junior in rank to the Superintendent, till the accused officer has been produced before the Superintendent, and has been given an opportunity of making a further statement in his defence. The sub‑rule appears to be mandatory and is not merely directory. It is obviously intended for the benefit of the State servant against whom an inquiry is held by an officer junior in rank to the Superintendent of Police. The purpose underlying the sub‑rule is that a Police Officer charged with misconduct be afforded an opportunity of appearing before the Superintendent of Police by way of further defence to make an oral statement, so that he can explain his position to the Superintendent of Police, who has not conducted the enquiry, and who has to either punish him or to forward the result of the inquiry to the officer having the power to punish. There is an obvious purpose behind the sub‑rule, which is for the benefit of the accused‑officer, and as it remained in force, it had to be observed. Its observance was not a mere technicality. It is a well‑known principle that where a statute provides that a party shall be heard and he has not been heard, the order is illegal and may even be void, and prejudice has to be presumed in its non‑compliance. It may be that had the petitioner been afforded an opportunity to appear before the Superintendent of Police to make a further oral state ment in his defence, he may have been able to persuade the Superintendent of Police that the inquiry was not properly held that the finding was not correct or that the charge was false or that he was not really guilty of the misconduct with which he was charged. We cannot treat the sub‑rule as one of the many which are of no importance, or significance. We are of the view that as the sub‑rule was created for the benefit of the police officer, who is charged with misconduct, a denial of the privilege can b presumed to have caused prejudice, and cannot be ignored as an omission of a technical nature. The breach is a denial of the protection of a substantial nature, which affects the opportunity to defend. It is to be remembered that it provides that no order of dismissal will be passed without complying with it. The non‑compliance of this sub‑rule, therefore, renders the dismissal illegal. 8. We do not agree with the contention that we have no power in writ jurisdiction to grant any relief to the petitioner even though there has been a breach of a statutory rule. The case of R. Venkata Rao mentioned above is distinguishable from the present case, and we hold that we have power to set aside the order of dismissed on the ground of illegality due to non‑observance of rule 6.20 (ix) of the Bahawalpur Police Rules. We, therefore, accept this writ petition with costs, set aside the order of dismissal, and declare that the petitioner continued to remain in service on the date of order of dismissal. This order will not however, debar the respondent from proceeding further with the enquiry from the stage ‑where the illegality occurred. K. B. A. Petition accepted.