P L D 1976 Supreme Court 538 (PLP)

DORAB PATEL, J.-This is an appeal against a judgment of the Sind & Baluchistan High Court by which the High Court allowed the writ petition of the respondent and set aside the order of the respondent's compulsory retirement from the police service. The respondent was a Deputy Superintendent of Police in Karachi in 1966 and a complaint was made against him that he had gone on 12-6-1966 to a village known as Bhangrio near Karachi and had committed criminal trespass in very aggravating circumstances. As the allegations were of a serious nature, Agha Muhammad Ali, Deputy Superintendent of police, Immigration, Karachi was appointed to inquire into them and according to Mr. Akhtar Mahmood, the respondent had been heard even at this stage and had denied all the allegations against him. However, the first appellant (namely the Inspector General of Police, West Pakistan, Lahore) had charge sheeted him on 29-12-1966. Further, according to Mr. Akhtar Mahmood the respondent bad submitted his reply to the charge-sheet on 23-2-1967 and bad denied all the allegations against him, therefore, the first appellant had ordered a formal inquiry under the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960 (hereinafter called the said Rules) and Mr. Muhammad Nawaz, Assistant Deputy Inspector General of Police, Karachi was appointed as the Inquiry Officer for this inquiry. . The respondent was informed of this formal inquiry by the first petitioner's letter of 15-4-1967. Mr. Akhtar Mahmood informed us that many witnesses had been examined in this formal inquiry by Mr. Muhammad Nawaz and that the respondent also had examined witnesses in his defence. However, the Inquiry Officer held that the charges against the respondent had been proved. This was on 15-6-1967. The respondent was, therefore served with a show-cause notice dated 6-7-1967. He submitted his reply to this notice and challenged the findings of the Inquiry Officer. His explanation was rejected and an order was passed on 19-10-1967 for his compulsory retirement with effect from 24-10-1967. The respondent filed an appeal against this order to the Chief Secretary, West Pakistan on 15-11-1967 under rule 14 of the said Rules. However, as his appeal was dismissed on 11-7-1968, he filed a writ petition in the Sind & Baluchistan High Court. The proceedings taken against the respondent consequent on the order charge-sheeting him had been taken under the said Rules, but according to the respondent the said Rules were not applicable to him, therefore, his contention was that the proceedings taken against him including the order for his compulsory retirement were illegal and void. But as to the preliminary inquiry conducted by Agha Muhammad Ali, his only objection was that this was not proper because he and Agha Muhammad Ali both held the same rank in the police force. The learned Judges of the Sind & Baluchistan High Court accepted the respondent's contention that he was not governed by the said Rules and as the inquiry proceedings against him had been taken under the said Rules, they held that these proceedings including the order for the respondent's compulsory retirement were illegal. They further observed with reference to the preliminary inquiry conducted by Agha Muhammad Ali that it offended against the "accepted norms of fair play and justice". Accordingly, they allowed the respondent's petition. Hence this appeal. I would first examine the said Rules and they were promulgated on 27-7-1960 by the Governor of West Pakistan. Rule 1 read: "

1. Short title, application and commencement-(1) These Rules may be called the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960. (2) These rules shall 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 Govern ment by notification in the official Gazette. (3) They shall come into force at once." After the proclamation of the Emergency in 1965 the Governor of West Pakistan issued a Notification on 29-10-1965 in the exercise of his powers under sub-rule (2) of rule 1 of the said Rules in which he directed that the said Rules "shall not apply to the police personnel in West Pakistan provided that the inquiry pending prior to 29-10-1965 shall be finalised in accordance with (the said Rules)". The notification then stated that the Governor was pleased to direct that "police personnel throughout West Pakistan shall be governed by the provisions of Chapter XVI of the Punjab Police Rules, 1934". Finally, the notification (to which I will refer as the first notification) stated that it would remain in force "until the proclamation of Emergency" was revoked. However, long before the revocation of the proclamation of Emergency, the Governor issued another notification on 19-6-1967 by which he superseded his notification of 29-10-1965, and this notification of 19-6-1967 (to which I will refer as the second notification) provided that during the period of the emergency; "all police personnel of West Pakistan below the rank of Deputy Superintendent of Police shall subject to the proviso to paragraph (a) above, be governed by the provisions of Chapter XVI of the Punjab Police Rules, 1934, and (c) that any departmental proceedings instituted against the Police Officer of or above the rank: of the Deputy Superintendent of Police under the Punjab Police Rules, 1934 in pursuance of the said Notifica tion shall stand terminated provided that where it is so considered necessary, fresh proceedings under the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960 shall be instituted against any such Officer." The Governor had, by the first notification, extended to all police personnel Chapter XVI of the Punjab Police Rules. The heading of this Chapter reads "Punishments" and the Punishments specified in the Chapter only relate to punishments for police personnel below the rank of Deputy Superintendent of Police. Thus the Chapter relates to punishments for the subordinate ranks of the police force as defined in section I of the Police Act, 1861. Additionally, the punishments in Chapter XVI do not include the punishment of compulsory retirement therefore, the learned Judges of the High Court rightly held (I say so with respect) that the Punjab Police Rules were not applicable to the respondent. The learned Judges further held that on proper construction of the first notification the said Rules had ceased to be applicable to the respondent between the 29th October, 1965 and the 19th June, 1967. Now, proceedings had been instituted against the respondent during this period and the report of Mr. Muhammad Nawaz, the Inquiry Officer, who conducted the formal inquiry had been submitted on 15-6-1967. The third show-cause notice had been issued after the second notification, and therefore the final stage of the proceedings against the respondent had been taken when the said Rules had once again been made applicable to Police officers of the rank of Deputy Superin tendent of Police and above. However, as the formal inquiry had been hold under the said Rules during the period when they were not applicable in terms to the respondent, the learned Judges held that the entire proceedings taken against the respondent were illegal, and this was the main ground on which they had allowed the writ sought by the respondent. With respect, the premise that the said Rules were not applicable to the respondent does not support the conclusion reached by the learned Judges that the proceedings against the respondent were illegal. The inquiry against the respondent could have been illegal only if it had infringed some provision or rule of law, but the learned Judges have not mentioned any rule of law which had been violated by holding the inquiry against the respondent under the said Rules, nor have they given any reasons for their view. On the other hand, as the said Rules contained elaborate safeguards for the benefit of the person proceeded against, even though the first appellant had erred in directing that the proceedings against the respondent may be; taken under the said Rules the result of this error was that the respondent had been given the benefit of a procedure to which he was not entitled. I am, therefore, not able to understand how he could make a grievance of this, and that in a writ petition. In order to overcome this difficulty, Mr. Akhtar Mahmood submitted that the object of the first notification was to give, temporarily, complete security of tenure to senior police officers. In support of this submission learned counsel pointed out that the first notification had been issued on account of the emergency and the further submission was that the Governor's intention in issuing this notification was that no, disciplinary action whatsoever should be taken against senior police officers during the period: of the emergency. If this submission be correct. police officers would have had immunity even against crimes committed by them. In my humble opinion, it would be absurd to attribute such an intention to the Governor nor can any such intention be spelt out of the first notification because it had expressly extended the Punjab Police Rules to all police personnel in the province. That these rules could not be extended to police officers of the rank of Deputy Superintendent of Police and above is another matter. But the draftsman's negligence cannot alter the fact that the express intention of the Governor had been to apply the Punjab Police Rules to all police personnel. As through the negligence of the draftsman the Governor was not able to implement his intentions the only question is of the effect of the first notification. There cannot be any doubt that the Punjab Police Rules only apply to police personnel below the rank of Deputy Superintendent of Police and as the said Rules had also ceased to be applicable it is clear that the proceedings taken against the respondent until the stage of the third and final show-cause notice against him had been taken during a period when the appointing authority's power to remove retire and dismiss police officers was not subject to any restriction except those prescribed in the Constitution and by the terms in the contract of employment, if any of the police officers concerned. It is not the respondent'& case that his removal from service was protected by the terms contained in his contract of employment, therefore, the only question is of the Constitutional guarantees available to him. Article 177 of the 1962 Constitution, which was in force at the relevant time read; "177. (1) Subject to this Constitution, a person who is a member of an All-Pakistan Service or of a civil service of the Centre or of a Province, or who holds a civil post in connection with the affairs of the Centre or of a Province- (a) shall not be dismissed or removed from service, of reduced in rank, by an authority subordinate to that by which he was appointed: unless that subordinate authority has been expressly empowered to do so by an authority not so subordinate; and (b) subject to clause (2) of this Article, shall not be dismissed or removed from service, or be reduced in rank, unless he has been given reasonable opportunity of showing cause against the action proposed to be taken with respect to him. (2)

" The second clause of this Article is not relevant because the first appellant bad directed that the respondent should be given an opportunity of showing cause. Similarly, it was not the respondent's case in the High Court nor is it his case before us that he had been retired by an authority subordinates to that by which he bad been appointed. Therefore, the only restriction on the first appellant's power to take action against the respondent for the incident of 12-6-1966 was that he had to give the respondent a reasonable opportunity of showing cause. And as action was taken under the said Rules, the real point for determination in the case was not whether the said Rules were in force or not but whether the procedure prescribed under them was such that it gave the respondent a reasonable opportunity of showing cause against his compulsory retirement. There cannot be any doubt about the answer to this question. Because the said Rules were followed, albeit erroneously the respondent was given three opportunities to show cause and the formal inquiry against him had been conducted by an officer senior to him. In these circumstances it cannot possibly be contended that the proceedings taken against the respondent were in contravention of the provisions of Article 177 of the Constitution. On the contrary, as the respondent was not entitled to the benefit of the said Rules, the inquiry against him was more than fair because it was conducted under these Rules. Accordingly, in my humble opinion, the action taken against the respondent was not open to challenge, except on the ground of some impropriety in the manner in which that action had been taken. Now, according to the High Court, the inquiries against the respondent were vitiated by two gross illegalities. The first was that the preliminary inquiry against the respondent had been conducted by an officer of the same rank as the respondent, and the second was that this officer had given evidence in the proceedings against the respondent. As Mr. Akhtar Mahmood only relied on these two circumstances, I would first examine the effect of the evidence given by Agha Muhammad Ali. Agha Muhammad Ali did not examine himself as a witness in the preliminary inquiry conducted by him, and it is necessary to remember that this preliminary inquiry was only in the nature of an investigation about which evidence could only be given by Agha Muhammad Ali himself therefore, be had been examined as a witness about these investigations in the formal inquiry conducted by Mr. Muhammad Nawaz after the respondent had been charge-sheeted. As evidence about the investigations conducted by the police is given in every criminal case, prima facie it is difficult to see how the respondent could have been prejudiced by Agha Muhammad Ali's evidence. But according to the High Court the examination of Agha Muhammad Ali was a gross illegality which had vitiated the proceedings taken against the respondent, because it had "deprived the petitioner (or) any proper defence which he may otherwise (have) had". Now as I observed, the Investigation Officer is always examined in criminal cases, therefore, the consequences of the view in the judgment under appeal are, to say the least, far reaching. But as the learned Judges based their conclus ion on a judgment of the Indian Supreme Court reported in State of U.P. v. Muhammad Nooh (P L D 1958 S C (Ind.) 274), I would examine this case. The respondent in the case cited was a police constable and he was dismissed after a departmental inquiry which under the relevant Rules was called a "trial". This "trial" was presided over by one Mr. Bhalla who ordered the respondent's dismissal. After exhausting the departmental remedies available to him, the respondent filed a writ petition in the High Court on the ground that his "trial" was bad because the presiding officer Mr. Bhalla had been a witness in the case against him and had given evidence at two stages of the proceedings on matters which were vital to the case against him. The High Court allowed the writ petition and the Indian Supreme Court agreed with the view of the High Court that the manner in which the "trial" bad been conducted "shocks our notions of judicial propriety and fairplay". I would respectfully agree with these observations, because a person cannot conduct an inquiry in which he is himself a witness, therefore, this judgment would have been relevant if Agha Muhammad Ali had examined himself in the inquiry conducted by him. This he did not do, and even the evidence given by him in the formal inquiry was confined to evidence about the preliminary inquiry conducted by him unlike the evidence of the inquiry officer in the case cited. Therefore, the judgment cited is distinguishable on both these grounds and does not lend any support whatso ever to the respondent's case. As the learned Judges have not given any other reason for the view taken by them, we invited Mr. Akhtar Mahmood to show us how the respondent had been prejudiced by Agha Muhammad Ali's evidence, the more so, as this evidence appears to have been helpful to the respondent's case. Mr. Akhtar Mahmood was not able to show us how the respondent had been prejudiced by Agha Muhammad Ali's evidence. No doubt learned counsel was handicapped by the fact that this objection had not been pleaded by the respondent in his writ petition. However, as the High Court allowed the objection to be agitated I would only observe that the respondent might have F been prejudiced by Agha Muhammad Ali's evidence if he had not been permitted to cross-examine the witness or if he had not been given proper facilities for the cross-examination of the witness. I cannot conceive of any other situation in which the respondent could have been prejudiced by this evidence but it is not his case that he was not permitted to cross-examine the witness nor is it contended even at this stage of the case that he had not been given proper facilities for the cross-examination of the witness. In these circumstances, I cannot agree with the view of the High Court that the proceedings against the respondent were illegal because Agha Muhammad Ali had given evidence in the formal inquiry against the respondent. However, the learned Judges also observed that the appointment of Agha Muhammad Ali as an Inquiry Officer "offends not only against accepted norms of fairplay and justice, but is against the very spirit of Rules of 1960". I would first examine the question of the norms of fairplay and justice. Unfortunately, the learned Judges have not explained how Agha Muhammad Ali's appointment violated any principle of justice, nor could Mr. Akhtar Mahmood refer us to any judgment in support of the conclusion reached by the learned Judges. And, on the other hand, as there were no statutory rules governing the proceedings taken against the respondent, the only question was whether the inquiries against him were conducted fairly and justly. As I would not like to lay down a wider proposition than is necessary for the decision of this case, I would emphasise that the respondent's objection is only with regard to the preliminary inquiry, and in my opinion the fact that this preliminary inquiry was conducted by an officer of the same rank was not a circumstance which by itself could have caused any prejudice whatsoever to the respondent. Now as no prejudice had been or could have been caused to the respondent can it be said that there had been a violation of the norms of justice? After all the principles of justice or to use the words of the learned Judges the norms of justice for an inquiry by a tribunal can only mean those principles which must be followed by tribunals in order that they may decide fairly and justly the matters entrusted to them, and there is absolutely no reason why Agha Muhammad Ali could not have decided the preliminary inquiry justly and fairly against the respondent merely because he held the same rank as the respondent in the police force. However, in a country governed by a written Constitution, the norms of justice cannot be ascertained without reference to the Constitution and as the question in the case was of the removal from service of a Government servant, Article 177 of the 1962 Constitution was relevant. As I showed earlier this Article prescribed that no person in service could be dismissed or removed from service by an authority subordinate to him by which he was appointed, but the only requirement for the inquiry against the person sought to be removed from or dismissed was that he should be "given a reasonable opportunity of showing cause against the action proposed to be taken with respect to him". A comparison of sub-clauses (a) and (b) of clause (1) of the, Article which I quoted earlier might lend support to the view that even the formal inquiry against a person sought to be removed could be conducted by an officer of the same rank. It is, however, not necessary to decide this question because in any case it is very clear that the view of the High Court is not supported by clause (1) of Article

177. The laws in force in 1966-67 were also relevant to the ascertainment of the norms of justice and although the said rules had temporarily ceased to be applicable to police personnel they were in force for all other Government servants, therefore, they were not irrelevant to the norms of justice to be followed by a service tribunal, not fettered in terms by rules. And as I will presently show the view taken by the High Court was contrary to the said Rules. Finally, the norms of justice can be gathered from the judgments of the superior Courts and from the opinions of eminent Jurists. But Mr. Akhtar Mahmood was not able to refer us to any judgment in support of his submis sion that Agha Muhammad Ali's appointment was bad nor have we comet across to any judgment which can support learned counsel's submission. T would, therefore, briefly refer to the views of Jurists. Halsbury (in Fourth Edition of the Laws of England, Vol. I in para graph 64) states; "

64. The rules of natural justice.-Implicit in the concept of fair adjudication lie two cardinal principles, namely, that no man shall be a judge in his own cause (nemo judex in causa sua), and that no man shall be condemned unheard (audl alteram partem). These two princi ples, the rules of natural justice, must be observed by Courts, tribunals, arbitrators and all persons and bodies having the duty to act judicially, save where their application is excluded expressly or by necessary implication." I am aware that service disputes do not arise frequently in England but the objection under consideration is of a type which arises frequently in writs issued against domestic tribunals. It is, therefore, significant that Halsbury limits the rules of natural justice to the two principles stated in the passage which I have quoted. Munir in his commentary on the Constitution of 1973 observes at page 431; "Principles of natural justice ; bias.-It is impossible to give an exact definition of the principles of natural justice, as the requirements of natural justice must depend on the circumstances of each case, via., the nature of the inquiry, the rules under which a tribunal is acting, the subject-matter that is being dealt with, etc. These principles, unless they are expressly excluded by the law under which a tribunal is acting, have been held, though not uniformly, to be applicable to tribunals in Pakistan which are called upon to adjudicate on private rights. Some of the important principles of natural justice, disregard of which has been considered by Courts of certiorari to be a sufficient ground for quashing decisions of inferior tribunals are

(1) that a man cannot be a judge of his own cause; (2) that no party is to be condemned unheard ; (3) that the party must in good time know the precise case he is to meet ; and (4) that a party is entitled to know why a matter has been decided against him." As service writs are a peculiarity of the Sub-Continent, I would also refer to Basu's views on the norms of justice to be followed by tribunals. In the Third Edition of his commentary on the Indian Constitution, the learned Author observes at page 103; "We have already seen that any quasi judicial order, whether of an administrative authority or of any other body, determining the rights of individuals, must conform to the principles of `natural justice' in order to maintain `the rule of law' which is essential for maintaining equality before the law. These principles are

(i) A person must not be a judge of his own cause. This rule precludes a member of the tribunal to try a cause to which he is a party .......... (ii) No man shall be condemned unheard . . . . . . . . . (iii) Hearing means hearing by an impartial tribunal . . . . ." Thus neither of the learned Authors subscribes to the view that an inquiry offends against the norms of justice if the person holding it is not senior in rank to the person against whom the inquiry is held. Mr. Akhtar Mahmood, however, submitted that an inquiry officer would not be impartial unless he was senior to the person proceeded against. This apprehension may be justified in some cases, just as in some cases an inquiry officer who is senior to the person proceeded against may be very partial. Impartiality after all is a question of integrity and integrity depends on character and not on rank, and, in the instant case, contrary to learned counsel's apprehension, the inquiry conducted by Agha Muhammad Ali was fair and impartial. Therefore, the requirement of justice as stated by Basu is that the inquiry must be by an impartial tribunal. That is the norm. of justice and I cannot agree with the view of the High Court that Agha Muhammad Ali's appointment had infringed the nomrs of justice and fairplay. Mr. Akhtar Mahmood's only other submission was that the view of the High Court was supported by rule 6-A of the said Rules. According to this rule even the preliminary inquiry, if sanctioned, had to be conducted by an officer senior to the person against whom the inquiry was being held. But this rule was inserted in the said. Rules by an amendment in 1969 whilst the proceedings against the respondent had been concluded in 1967, therefore, rule 6-A was not relevant to the proceedings against the respondent. Secondly, this cumbersome rule had a chequered history and was removed from the statute book in less than five years, therefore the principle contained in it was not fit to be treated as a norm of justice. On the other band, with regard to major penalties, and the action taken against the respondent was a major penalty, the said Rules at the time of the inquiries against the respon dent read as follows;

"

6. Inquiry procedure in cases of inefficiency, misconduct and corrup tion.-(I) When a Government servant is to be proceeded against under clause (a), (b) or.(c) of rule 3, the following procedure shall be observed :- (i) The authority may, if it thinks fit, appoint an officer of the Depart ment or Office to which the Government servant (hereinafter called the accused) belongs, to examine and report on the allegations against him to enable the authority to decide whether a formal inquiry should be held, and such officer may also informally examine the accused. (ii)

(iii)

. (iv) (a) In cafes calling for a major penalty, the authority having power to impose the penalty shall frame a charge and communicate it to the accused together with a statement of the allegations on which it is based and. (b) .

(c) .

(d) .

(e) .

(2) .

8. Appointment and procedure of Inquiry Officer.-(1) Where a Government servant is proceeded against under clause (a), or clause (b) or clause.,(c) of rule 3, and the authority decides that the allegations against him, if proved, call for a major penalty, the authority shall appoint an officer, senior in rank to the person proceeded against, to be Inquiry Officer and to conduct the proceedings against him. (2) .

(3) .

(4) .

'Rule 8 expressly prescribed that the formal inquiry should be conducted by an officer senior in rank to the person against whom the inquiry was being held. As on the other hand rule 6(1)(i) merely prescribed that the officer holding the preliminary inquiry should belong to the same department or office as the person against whom the inquiry was being conducted, it is very clear that a person who conducted this preliminary inquiry could even be junior in rank to the person proceeded against. Therefore, with respect, the view of the learned Judges is contrary to the said Rules. In the circumstances discussed I am satisfied that the proceedings against the respondent were in accordance with the provision of Article 177 of the then Constitution and were conducted in a fair and just manner. I would, therefore, allow the appeal, set aside the judgment of the High Court and restore the order of compulsory retirement passed against the respondent, but I would leave the parties to bear their own costs. S.A.H Appeal allowed.