P L D 1957 Azad J & K 15 (PLP)

ABDUL HAMID KHAN, J.‑--The plaintiff in this suit has alleged:‑ (a) that he was a Gazetted officer during the Dogra regime and was posted as Superintendent of Police in the year 1948; (b) that he joined Azad Kashmir Service in the year 1948 and after this was appointed permanently as Inspector General of Police Azad Kashmir in which capacity he worked till 7th January, 1952; (c) that he received a letter No. 70‑76/Cab/52 dated the 7th January, 1952 from the Secretary General intimating that he had been suspended from service but this was not based on a Council Order; (d) that subsequent to his suspension, he received another letter from the Secretary General under No. Anti‑Corrup tion/1 S. G./52 dated the 29th February 1952, in which he had been charge‑sheeted and it was stated that a Commission had been appointed to hold an enquiry against him under section 3 of the Public Servants Enquiries Act but even this order was not based on any Council Order; (e) that on a previous occasion too he had received a charge‑sheet under No. 355/DEV/50 dated the 18th March, 1951 from the Enquiry Board consisting of the Ministers Police and Transport which was based on the same accusations as the charge‑sheet which had been received by him under Secretary General's letter No. Anti- Corruption/1/S. G./52 dated the 29th February 1952; (f) that on receipt of the charge‑sheet under No. 355/ DEV/50 dated the 18th March 1951, and enquiry was held against him by the two Ministers who submitted their report to the Azad Kashmir Government and the latter by Council Order No. 559/51, dated the 25th November 1951, administered only warning to him and finally disposed of the case, that this order was in accordance with the pro visions of sections 3 and 21 of the Public Servants Enquiries Act of 1977; (g) that when he again received intimation from the Secretary General that he was to be tried again for the same accusation for which already an enquiry had been held and the matter finally disposed of, he raised an objection before the Commissioner that the second enquiry was illegal but no heed was paid to it; (h) that the second Commission which consisted of the then Chief Justice Khan Bahadur Sheikh Abdul Majid Sahib also came to the same conclusions after the enquiry which had been arrived at by the Council Order No. 559/51 dated the 25th January 1951; (i) that on the, basis of the report of the second Com mission, the Azad Kashmir Government by its order No. 353/54 dated the 20th October 1954, communicated to him under No. 248,3/84/H D S/54, dated the 29th October 1954, discharged him from service in the interest of administration holding him to be entitled to proportionate pensionary allowance if provided under rules; (j) that the order suspending him from service was illegal and ineffective against him not having been passed by the Council of Ministers; (k) that the order for second enquiry under the Public Servants Enquiries Act too was illegal having not been passed by a regular constituted Council of Ministers and also on the ground that no enquiry could be held for the second time for the same offence; (l) that as the order of suspension and the holding of 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 against him; (m) that a regular notice under section 80, Civil P. C., had been served on the Government on 18th July 1956; (n) It was, therefore, prayed that a declaratory decree with costs be passed in his favour holding that the order suspending him from service issued under letter No. 70 76/Cab/52 dated the 7th January 1952, the order for second enquiry dated 29th February 1952, No. Anti‑corruption/1/S. G./52 and the Council Order No. 353/54 dated the 20th October 1954, discharging him from service are illegal, unjust, mala fide, oppressive, wanton and ineffective against him and that he continues to be Inspector‑General of Police, Azad Kashmir, even after 7th January 1952 and is entitled to all the rights and privileges and pay attached to this post. The defendant has admitted in the written statement that the plaintiff was a Gazetted Officer in the Dogra Ragime and was holding the post of Superintendent of Police in 1948; that he had joined the Azad Kashmir Police Service in 1948 and was a permanent Inspector General of Police but was suspended on 7th January 1952 on account of misconduct; that the order suspending him from service was a Govern ment Order and perfectly valid; that it is correct that the plaintiff was charge‑sheeted on 29th February 1952, under letter No. Anti‑corruption/1/S. G./52 and a Commission had been appointed to make an enquiry against him under the Public Servants Enquiries Act of 1977; that this was a Government Order and perfectly valid; that the charges referred to in letter No. 355/DEV/50 dated .18th March 1951, and the charges enquired into by the Enquiry Commission were different : that the charge‑sheet referred to in No. 355/ DEV/50 was only an explanation called from the plaintiff on which Council Order No. 352/51 dated 25th November 1951, had been passed but it is wrong that any enquiry had been held under the Public Servants Enquiries Act ; that as a matter of fact in the order dated 25th November 1951, no order with regard to all the accusations entered in charge -sheet referred to in No. 355/DEV/50 had been passed; that it is wrong that there was any legal bar to the enquiry being held under the Public Servants Enquiries Act by the Com missioner ; that all the orders passed by the Government referred to in paras. 11 and 12 of the plaint are perfectly valid and effective and that such orders cannot be challenged by the plaintiff. The parties were put to the following issues:‑ (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 the 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. 3 (a) 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. 3 (b) 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 the 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. D. Only documents relevant to the issues were produced by the parties and no oral evidence was led except the statement of the plaintiff who appeared as his own witness. The plaintiff practically repeated what he has alleged in his plaint. Lengthy arguments were addressed by the learned counsel for the plaintiff. He started arguing issue No. 5 first and I shall, therefore, take up this issue first. It may be stated at this stage that the learned counsel for the defendant on whom the burden of this issue lay did not address any arguments on the point though in spite of it the learned Counsel for the plaintiff explained his point of view. The line of argument that he adopted was that the Government servant in Azad Kashmir did not serve the Government at its pleasure just as the Government servants in the British Indian time served the Crown at the latter's pleasure. For this, he referred to the Jammu and Kashmir Constitution Act 1996, to the Rules of Business, Civil Service Regulation, Volume II adopted by the Azad Jammu and Kashmir Government and Notification No. 3316 dated the 26th December 1949. According to him, the Maharaja of Kashmir had certain inherent powers defined in section 5 of the Jammu and Kashmir Constitution Act of 1996 which passed on to the people in the area, now constituting Azad Kashmir Territory, but that the Government of Azad Kashmir was never in vested with those inherent powers. For this, he took his stand on Notification No. 3316 dated the 26th December 1949 which runs as under:‑ "Whereas under the present International Law it rests with the people of a territory to form their own Government through their own representatives, it is the inherent right of the people of Azad Kashmir to exercise political power necessary for the maintenance of Law and Order, for the safety and proper administration of the Azad Kashmir Territory by applying domestic and local Laws with certain modifications without infringing the rights of the inhabitants of the Azad Kashmir Territory, it is notified that under section 3 of the Azad Kashmir Courts and Laws Code of 1949, all Laws and enactments of the old regime inconsistent with the provisions of the said Code or with enactments passed or adopted by the Azad Kashmir Government have been repealed and all the remaining Laws of the old regime have, as far as practicable, been allowed to continue to remain in force. All references to "His Highness" or Government in succession are to be construed to refer to Azad Kashmir Government." He pointed out that the Jammu and Kashmir Constitution Act of 1996 was never adopted in the Azad Kashmir Territory since it was opposed to the very basic idea of the liberation movement started to dethrone Maharaja, an autocrat, and establish the rule of the people, and that by adopting the Rules of Business, which forms the Constitution of Azad Kashmir Government, the Jammu and Kashmir Constitution Act of 1996 stood repealed being inconsistent with the provisions of the Rules of Business. He, therefore, argued that since the inherent powers enjoyed by the Maharaja were no more being enjoined by the Azad Kashmir Government, it could not be said that the Government employees of Azad Kashmir served at the sweet will of the Government and could be dismissed for no reason. Referring to section 30 of the K. S. R., he pointed out, that the wording of the section indicated that it was only for good and sufficient reason that a Government servant could be penalized in the way as laid down in the section and that section 24 of the Public Servants Enquiry Act also gave a similar indication As already remarked the learned Counsel for the defendant did not touch these points in his arguments. The perusal of the Rules of Business shows that it is nowhere laid down there that the Government employees hold office at the pleasure of the Government though no doubt it is specifically laid down that the Chief Justice and the Judges of the High Court of Judicature shall hold office during the pleasure of the Supreme Head. It is correct that the Jammu and Kashmir Constitution Act of 1996 has not been enforced in the Azad Kashmir Territory for obvious reasons and its place has been taken by the Rules of Business at present in force here. The Notification No. 3316 dated the 26th December 1949 lays down in unmistakable terms that "it rests with the people of a territory to form their own Government through their own representatives, it is the inherent right of the people of Azad Kashmir to exercise political powers necessary for the maintenance of the Law and Order for the safety and proper administration of Azad Kashmir Territory by applying domestic and local laws with certain modifications without infringing the rights of the inhabitants of the Azad Kashmir Territory. " It is clear from the Notification that modifications have been effected in certain laws whereas others inconsistent with any of the enactments of the Azad Kashmir have been repealed. As nowhere in any Act in force in Azad Kashmir either newly‑enacted or already in force in the Dogra time but which has also been in force here it occurs that the Government servants hold office at the pleasure of the Government, I cannot subscribe to the view that they hold office at the pleasure of the Government. It is correct that section 30 of the K. S. R. Volume II lends support to this view. 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 A I R 1940 P C 105 has been correctly quoted by the learned counsel for the plaintiff in support of this view. Thus, I hold that the plaintiff could challenge the authority of the Government for suspending and removing him from service without good and sufficient reasons. I, therefore, find issue No. 5 against the defendant. I shall next take up issues Nos. 3, 3 (a) and 3(b). It has been argued that the first enquiry made against the plaintiff was of quasi‑judicial nature. For this, the learned counsel for the plaintiff has referred to Muhammad Hussain Khan v. Federation of Pakistan etc. (P L D 1956 Kar. 538) "A quasi judicial proceeding has been stated to be one in which a determina tion is reached on evidence only and after a proper opportunity to the party affected of showing cause, and the determination by itself or along with other circumstances which may or may not have been determined judicially forms the basis of an order which' involves civil consequences to a party". The order as to first enquiry does not disclose whether it was intended to be a departmental enquiry under section 32 of the K. S. R. or an enquiry under the Public Servants Enquiry Act. However, the learned counsel for the plaintiff contends that whether it was a departmental enquiry or an enquiry under the Public Servants Enquiry Act of 1977, it was a proceeding of a quasi judicial nature and, therefore, the universal principle of res judicata was applicable. This principle lays down that "no man shall be vexed twice over the same cause". Corresponding to this is section 403, Criminal P. C., which lays down that "a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same fact for any other offence for which a different charge from the one made against him might have been made under section 236, or for which he might have been convicted under section 237". The learned Counsel for the plaintiff has quoted the following cases as authority in support of his contention A I R 1935 Mad. 56, A I R 1934 Mad. 311 and A I R 1921 P C

11. The learned Counsel for the defendant does not dispute the quasi judicial nature of the proceedings nor the universal principle of res judicata. He also does not dispute that the charges in the first enquiry and the subsequent enquiry did not emanate from the same facts which are embodied in the report of the Anti‑Corruption Staff Exh. P. 1 which is briefly as under:‑ "The plaintiff who was then Inspector General of Police was the registering authority of the Transport and in charge of Traffic in Azad Kashmir area. One Muhammad Afzal Deen son of Khawaja Fazal Deen of village Pind Kalan, District Mirpur bought five buses and two trucks in the beginning of 1950 and got them registered at Muzaffarabad vide No. AKC 256 to AKC 261 and AKC 263 to run them in District Mirpur. He got them attached to Mujahid Kashmir Motor Union, Jhelum. The other partners of the Mujahid Kashmir Motor Union, who had one lorry each, wanted equal share in the earnings with Muhammad Afzal Deen which the latter did not like. As the Mujahid Kashmir Motor Union was sanctioned solely on the basis of the vehicles of Muhammad Afzal Deen, the latter wanted licence to float a new company. Mr. Deen once purchased a new motor engine No. 9G‑166 18F on 10th July 1950, in the name of his brother Usman Ghani and made a truck. Sheikh Muhammad Saleem, the plaintiff, filled up a form of application for the registration of a motor vehicle on 1st August 1950, and registered the truck in the name of his son Khalid Jahangir and gave it the No. AKC

292. Khalid Jahangir was then a school boy and a minor. Muhammad Afzal Deen had certified on the form under his signatures the ownership in the truck of Khalid Jahangir. This truck was attached with the Mujahid Kashmir Motor Union. On 9th October 1950, Muhammad Afzal Deen applied to the Inspector General of Police for grant of licence to float a new company and to name it "Deen Transport Service." The Inspector General of Police sanctioned this company and issued a licence on 10th October 1950. It was alleged that Sheikh Muhammad Saleem had in fact accepted the truck as illegal gratification in lieu of the licence which he issued in favour of Mr. Deen for floating a new Company." The learned counsel for the defendant, however, contended that as three charges Nos. 2, 3 and 4 in the subsequent enquiry were distinct from the charges previously brought forth against the plaintiff, there was no legal bar to the second enquiry being held. For this, he referred to section 403 Part II Criminal P. C. He further maintained that the perusal of section 8 of the Public Servants Enquiry Act showed that the Rules of the Criminal P. C., were more applicable to the case than principle of the res judicata as laid down in the Civil P. C. It is now to be seen whether there is any for in the contention of the learned counsel for the defendant. At this stage, it is proper to reproduce the charges in the previous enquiry as well as the charges levelled against the plaintiff in the subsequent enquiry. The charge‑sheet Exh. P. 3 relating to the first enquiry runs as under: "(1) One Muhammad Afzal Deen was a partner of Kashmir Motor Union and in spite of the opposi tion from other partners of this Company a separate company was registered in the name of Muhammad Afzal Deen only. Under what circumstances this company came into being? (2) Muhammad Afzal Deen applied to you (I. G. P.) on 9th October 1950 for getting his company registered and for grant of route permit. This company was registered by you and also granted a permit the very next day, i.e. 10th October 1950. Can you explain such extraordinary haste and other formalities necessary before the registration and issue of a permit gone through? (3) One truck No. AKC 292 was registered by you in the name of Khalid Jahangir, your own son who is still reading in a school and this truck was attached to this company of Muhammad Afzal Deen viz. Deen Transport Company. This truck has been purchased by Muhammad Afzal Deen and paid for by him and he has transferred the ownership of the same to Khalid Jahangir. Will you explain, how this truck came into the ownership of your son and did he pay for it? If so, how? (4) Does this not follow your conduct in showing extra ordinary favour to Muhammad Afzal Deen that this was done by you in transferring the ownership of one truck worth Rs. 10,350 to your son which in other words means that it was a Benami transaction and in effect it amounted to your accepting illegal gratification to the extent of Rs. 10,350 that you have abused your position as I. G. P. and that your action otherwise than accepting of illegal gratification, amounts to gross misconduct. (5) Can you show cause why disciplinary action be not taken against you besides such other legal action you may be liable to under Law. The charge‑sheet Exh. P. 7 relates to the second enquiry and runs as under:‑ (1) That you while holding the post of the Inspector General of Police, accepted without consideration a truck, engine No. 9G‑16618F, registered as AKC 292 in the name of your son Khalid Jahangir, a minor school boy dependent upon you from Muhammad Afzal Deen, a Transport Operator working under your authority on 1st August 1950 at Muzaffarabad. That, you accepted this truck as a gift, gratuity or reward for showing him the favour of granting the registration and the route permits for the Mirpur District roads to his three vehicles viz. AKC 293, AKC 294, and AKC 295 and subsequently allowing him to run a separate Transport Service in his own name. (2) That you while holding the post of the Inspector General of Police, sanctioned on 1st August 1950 at Muzaffarabad the registration and the route permit for the Mirpur District roads of truck No. AKC 292 in the name of your son Khalid Jahangir dependent upon you and employed the truck for hire and reward by attaching with the Mujahid Kashmir Motor Union plying under your official authority and thus engaged in the trade of Transport without the previous sanction of the Government. (3) That you while holding the post of the Inspector General of Police at Muzaffarabad on or about 1st August 1950 placed yourself under pecuniary obligations to Muhammad Afzal Deen subject to your official authority and carrying on the transport business within the local limits of your authority by receiving the truck No. AKC 292 in the name of your son Khalid Jahangir dependent on you without paying him anything at the time of obtaining the truck. You further failed to declare your intention to the Government about this transaction. (4) That you while holding the post of the Inspector General of Police ordered the registration and the issue of route permits for the Mirpur District roads to four vehicles AKC 292, AKC 293, AKC 294 and AKC 295 on 1st August 1950 at Muzaffarabad by an utter disregard of the rules and instructions and thereby failed to discharge your duties in an efficient and proper manner. The learned counsel for the defendant admitted that charge No. 4 of Exh. P. 3 was embodied in the charge No. 1 of Exh. P.

7. As for other charges, charge No. 2 of Exh. P. 7 and charge No. 3 of Exh. P. 3 are identical except for the fact that whereas in charge No. 2 of Exh. P. 7 attachment of the truck has been shown to be with the Mujahid Kashmir Motor Union in Charge No. 3 of Exh. P. 3, its attachment has been shown to be with Muhammad Afzal Deen Transport Company. This difference is hardly of any value for the following reasons: (a) when the new company of Muhammad Afzal Deen had not come into existence, all the trucks of Muhammad Afzal Deen were attached to Mujahid Motor Union: (b) the object of the accusation is the same, i.e., engaging the truck in trade irrespective of the fact whether it was attached to one Company or other. Charge No. 3 of Exh. P. 7 is practically embodied in charge No. 3 and partly in charge No. 4 of Exh. P.

3. Charge No. 4 of Exh. P. 7 is in fact included in charge No. 1 of Exh. P.

3. A Company is only formed when it has a certain quota of vehicles. The vehicles mentioned in charge No. 4 of Exh. P. 7 were registered and given route permits in order to complete the quota of Muhammad Afzal Deen to enable him to float a new Company. Thus, it would be clear that there was nothing new in the charges that were levelled against the plaintiff in the charge‑sheet handed over to him to stand the second enquiry against him. It is, therefore, wrong to say that the charges in the subsequent enquiry for which enquiry was held against the plaintiff were distinct from the charges for which he was subjected to an enquiry on a previous occasion. Perusal of the Council Order No. 559/51 dated the 25th November, 1951 Exh. P. 5 shows that after the first enquiry, a warning was administered to the plaintiff and the case was finally closed. As the case was finally closed and the charges for which enquiry was made for the second time were identical to the charges for which an enquiry was made on a previous occasion by the two Ministers of the Govern ment, I hold that the plaintiff could not be legally subjected to the second enquiry. The proceedings of the first enquiry being definitely of a quasi judicial nature, the universal principle of res judicata applied to the case. Even the principle embodied in section 403, Criminal Procedure Code is almost the same and is governed by the maxim nemo debet bis vexari pro eadem causa (no person should be twice disturbed for the same cause) and is bar to the holding of the second enquiry. 1, therefore, find on issues Nos. 3, 3 (a) and 3 (b) in favour of the plaintiff and hold that in view of the first enquiry against the plaintiff and the final disposal of the case by the Cabinet, the second enquiry on identical charges based on the same facts was not legally competent. It may be mentioned here that the learned counsel for the defendant quoted from section 49 of the K. S. R. to show that the Government had powers to review its own order No. 559/51 dated 25th November 1951 and pass another order for the holding of a second enquiry against the plaintiff. This contention has been repelled by the learned counsel for the plaintiff in pointing out that this was never the case of the defendant, otherwise, this plea should have been taken in the written statement. He, further developed his replication by saying that had the Government reviewed its own order, it could have mentioned so in the order, whereas, there is absolutely no mention of the previous order, its cancellation or substitution by a fresh order. I agree with the view expressed by the learned counsel for the plaintiff. Had the order been reviewed, the previous order would have been cancelled, but this was never done. Therefore, to say that the Government reviewed its own order, is wrong. It would be of some worth to point out that while arguing his case, the learned counsel for the defendant remarked that Exh. P. 3 was not a charge‑sheet but a few questions put to the plaintiff. I am afraid, I cannot agree with this interpretation of Exh. P.

3. Charges are always prepared in interrogatory form and if they were put down in interrogatory form in Exh. P. 3 that was the only right f, course to do. Item No. 5 in Exh. P. 3 definitely gives Exh. P. 3 the colour of charge‑sheet. I now take up issues Nos. 1 and

2. The plaintiff questions the validity of the order of his suspension dated the 7th January 1952 and the order dated .the 29th February 1952 by which second enquiry was ordered under the Public Servants Enquiry Act on the ground that these orders were not passed by the Council. Before I come to the point at issue direct, I deem it proper to briefly go into the history of Azad Kashmir and its Constitution. The liberation movement of Jammu and Kashmir State was openly launched by the Muslims of the State at the close of October 1947. Before that, there were internal upheavals 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 Rules 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, was 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 and 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 was effected in the Rules of Business by virtue of Council Order No. 335/52 dated the 17th June 1952. This amendment is under the signatures of Mir Waiz Muhammad Yousaf Shah Sahib. According to the Rules of Business of 1950, the "Council" had the power to legislate and the word "Council" was defined as the "President" and "other Ministers of the Azad Kashmir C Government". Everybody knows, that Mir Waiz Muhammad Yousaf Shah Sahib had no Ministers. He had Advisers called "Maowineen" who advised him on various matters of Govern ment 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 Sahib'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, I leave it here and pass on to the point whether appointments of Gazetted Officers and disciplinary action against them was a matter to be handled by the "Council" or by the President alone or by the "Government". Schedule I Part II of the Rules of Business of 1950 lays down the powers of the "Council". Sub‑clauses (1) and (2) of this Part II run at under: (i) sanction the appointment of all Gazetted Officers; (ii) Decide cases involving postings, transfers and disciplinary action against Secretaries to Government, Heads of Departments, Deputy Commissioners, Superin tendents of Police and other Officers of comparable rank. As remarked, no amendment was effected in this part of the Rules of Business, even at the time of Mir Waiz Muhammad Yousaf Shah Sahib. So, it is to be seen, whether Mir Waiz Muhammad Yousaf Shah alone as President could exercise the powers of the "Council". My answer to this is no, and I base my conclusion on the following reason. If the Rules of Business could be amended in either respects, why has it that the definition of the word "Council" was not amended. With a stroke of pen, it could be laid down by way of amendment, that even the President, in the absence of Ministers, would constitute Council. Since this amendment was not effected, I see no reason to force an interpretation and say that since Mir Waiz Muhammad Yousaf Shah had no Ministers, he alone constituted the 'Council" as a special case. It has been argued that the "President" alone constitutes "Government" and, therefore, whatever he does is valid and amounts to Government order. Reliance has been placed in the Full Bench ruling of this Court in "Khan Bahadur v. Government decided on 5th May 1956" I myself was a Member of that Bench. It was in relation to penal provisions that it was held that the "President", who by Law administered executive Government, came under the definition of the term "Government. It was never meant, that for all purposes and for every sphere of administration, he alone constituted "Government", It may, however, be remarked here that at the time the Full Bench ruling was given, the Rules of Business initially enforced had undergone many changes and the "President" enjoyed much more powers than be enjoyed under the Rules of Business promulgated in the year 1950. As already stated, Council of Ministers alone were authorised under the Rules of Business to take disciplinary action against the Heads of the Depart ments. Therefore, to say that the "President" alone, even though he had no Ministers, could exercise those powers would be stretching the language of the relevant Rules of Business too far, I, therefore, hold that the order of suspension Exh. P. 6 of the plaintiff dated 7th January 1952 and the order of second enquiry Exh. P. 8 under Council Order No. Anti- corrupt 1/S. G./52 dated the 29th February 1952 against him were both illegal as not having been passed by a competent authority. I, therefore, find on Issues Nos. 1 and 2 in favour of the plaintiff. Now a few words about issue No.

4. With my findings on issues Nos. 1 and 2, disposal of this issue becomes very simple. As held, the order of suspension of the plaintiff was illegal and so also the order by which a second enquiry was ordered against him. Therefore, the order of discharge based on the report of the second enquiry which was subsequently ratified by the Council Order No. 353/54 dated the 20th October 1954 could not have any legal force, unless the same too were regularized by the Government. I, therefore, find on issue No. 4 in favour of the plaintiff. As a result of my findings on different issues, I grant the plaintiff a declaratory decree with costs to the effect that the order suspending him from service issued under letter No. 70‑76/CAB/52 dated the 7th January 1952, the order for second enquiry against him issued under Council Order No. Anti‑corrupt/1/S. G./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 Azad Kashmir, even after the 7th January 1952 and is entitled to all the rights and privileges and emoluments attached to this post. A. H. Suit decreed.